REPRESENTATION (article 24) - PORTUGAL - C029, C081, C095, C105, C129, C132 - 1985

1. General Confederation of Portuguese Workers (CGTP-IN)

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Report of the Committee set up to examine the representation made by the General Confederation of Portuguese Workers under article 24 of the Constitution alleging non-observance by Portugal of the Forced Labour Convention, 1930 (No. 29), the Labour Inspection Convention, 1947 (No. 81), the Protection of Wages Convention, 1949 (No. 95), the Abolition of Forced Labour Convention, 1957 (No. 105), the Labour Inspection (Agriculture) Convention, 1969 (No. 129), and the Holidays with Pay Convention (Revised), 1970 (No. 132)

Report of the Committee set up to examine the representation made by the General Confederation of Portuguese Workers under article 24 of the Constitution alleging non-observance by Portugal of the Forced Labour Convention, 1930 (No. 29), the Labour Inspection Convention, 1947 (No. 81), the Protection of Wages Convention, 1949 (No. 95), the Abolition of Forced Labour Convention, 1957 (No. 105), the Labour Inspection (Agriculture) Convention, 1969 (No. 129), and the Holidays with Pay Convention (Revised), 1970 (No. 132)

Decision

Conventions Nos. 29, 81, 95, 105, 129, 132: The Governing Body adopted the report of the tripartite committee. Procedure closed. Conventions Nos. 87, 98, 135: Referred to the Committee on Freedom of Association (Case No. 1303). Report No. 240, June 1985.

Complaint Procedure

Introduction
1. By letters dated 1 March 1984 and 10 May 1984, the General Confederation of Portuguese Workers (Confederaçao Geral dos Trabalhadores Portugeses - Intersindical Nacional or CGTP-IN), referring to article 24 of the Constitution of the ILO, made a representation to the Office alleging failure by the Government of Portugal to observe the Forced Labour Convention, 1930 (No. 29), the Labour Inspection Convention, 1947 (No. 81), the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Protection of Wages Convention, 1949 (No. 95), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Abolition of Forced Labour Convention, 1957 (No. 105), the Labour Inspection (Agriculture) Convention, 1969 (No. 129), the Holidays with Pay Convention (Revised), 1970 (No. 132), and the Workers' Representatives Convention, 1971 (No. 135).
2. The representation concerns a number of Conventions to which Portugal is a party and which are still in force for this country. (Endnote 1)
3. The provisions of the Constitution of the International Labour Organisation concerning the submission of representations are as follows:
Article 24
In the event of any representation being made to the International Labour Office by an industrial association of employers or of workers that any of the Members has failed to secure in any respect the effective observance within its jurisdiction of any Convention to which it is a party, the Governing Body may communicate this representation to the government against which it is made, and may invite that government to make such statement on the subject as it may think fit.
Article 25
If no statement is received within a reasonable time from the government in question, or if the statement when received is not deemed to be satisfactory by the Governing Body, the latter shall have the right to publish the representation and the statement, if any, made in reply to it.
4. The procedure to be followed in the event of a representation is governed by the revised Standing Orders adopted by the Governing Body at its 212th Session in March 1980. (Endnote 2)
5. In accordance with articles 1 and 2, paragraph 1, of the Standing Orders, the Director-General acknowledged receipt of the representation, informed the Government of Portugal and brought the representation before the Officers of the Governing Body.
6. At its 226th Session (May-June 1984), the Governing Body, on the recommendation of its Officers, decided that the representation was receivable. It further decided to refer the aspects of the representation relating to the application of Conventions Nos. 87, 98 and 135 to the Committee on Freedom of Association. (Endnote 3)
7. At its 227th Session (June 1984), the Governing Body set up a Committee to examine the representation, consisting of Mr. Giovanni Falchi (Government member, Italy), Chairman, Mr. Nejib Saïd (Employer member) and Mr. Marc Blondel (Worker member).
8. In accordance with article 4, paragraph 1, clauses (a) and (c), of the Standing Orders, the Committee decided (a) to invite the CGTP-IN to communicate before 15 August 1984 any further information it might wish to bring to the attention of the Committee, and (b) to invite the Government to submit its observations on the representation before 15 September 1984, on the understanding that any additional information received from the CGTP-IN would also be communicated to the Government.
9. The CGTP-IN sent additional information by a letter dated 9 August 1984. The information was immediately communicated to the Government.
10. By a letter dated 17 October 1984, the Government requested additional time - up to 15 November 1984 - for communicating its observations on the representation. The new deadline was accepted by the Committee. Consequently, the examination of the representation by the Governing Body, which had been placed on the agenda of its 228th Session (November 1984), was postponed. (Endnote 4)
11. The Government sent its observations on the allegations in two communications dated 7 and 10 December 1984. The Committee met in Geneva in February 1985 and adopted its report.
Examination of the representation
12. The Committee notes that the representation refers to a number of Conventions concerning various matters but that the principal allegation relates to the delayed payment or non-payment of wages. This aspect is covered by the Protection of Wages Convention, 1949 (No. 95) and, where the remuneration is for paid annual leave, by the Holidays with Pay Convention (Revised), 1970 (No. 132), as well. The situation that has arisen involves the question of labour inspection, which comes under the Labour Inspection Convention, 1947 (No. 81), and the Labour Inspection (Agriculture) Convention, 1969 (No. 129). Lastly, the complainant organisation maintains that the situation imposed on the workers also comes within the scope of the Forced Labour Convention, 1930 (No. 29), and the Abolition of Forced Labour Convention, 1957 (No. 105). The examination of the representation by the Committee will therefore deal in turn with the following aspects:
A - the situation with respect to the observance of Convention No. 95 on the protection of wages and Convention No. 132 on holidays with pay;
B - the situation with respect to the observance of Conventions Nos. 81 and 129 on labour inspection; and
C - the situation with respect to the observance of Conventions Nos. 29 and 105 on forced labour.
A. Conventions concerning the protection of wages and holidays with pay
Protection of Wages Convention, 1949 (No. 95)
Allegations
13. The General Confederation of Portuguese Workers (CGTP-IN) alleges that the Government of Portugal has failed to comply with the obligations it assumed by virtue of its ratification of the Protection of Wages Convention, 1949 (No. 95).
14. The CGTP-IN states that a situation reaching dramatic proportions exists in Portugal as a result of the non-payment of wages in numerous undertakings, or delays in their payment beyond the dates on which they fall due, despite the fact that in many cases work has actually been done and the undertakings continue to operate.
15. The complainant organisation states that in other cases the undertakings are reduced to idleness, although none of the relevant legal conditions have been met - that is to say in the absence of all suspension of contracts of employment, collective dismissals or bankruptcy of the undertaking - and the workers, who remain contractually bound to the undertaking, find themselves deprived of the wages to which they are entitled. The organisation states that in many cases the non-payment of wages is culpable, in that the employer deliberately refrains from paying them even though he has financial resources to do so or else fraudulently creates a so-called "crisis" situation and then pleads the "objective" impossibility of paying the wages.
16. The CGTP-IN states that virtually all economic sectors are involved, since both public and private sector undertakings and even the public service are affected. It therefore considers that this is not a "marginal" affair of undertakings that are bankrupt, in liquidation or confronted with temporary financial problems, but a situation that is widespread and deteriorating.
17. The CGTP-IN states that in December 1983 it investigated 456 undertakings where the wages of 143,190 employees were in arrears. It also believes that, since its survey was not comprehensive, the actual number of employees affected was over 150,000 at the end of December 1983. The CGTP-IN adds that, if the figures of the National Statistical Institute are accepted and the total number of wage earners in June 1983 was about 2,181,000, then 5.2 per cent of the workers were suffering from delays in the payment of their wages, which clearly illustrates the gravity of the problem.
18. According to the complainant organisation, the implications of this situation go very deep and affect the entire economic and social life of the country, causing a serious disruption of the workers' family life, which may be damaging to health and, in extreme cases, even lead to suicide.
19. The complainant organisation considers that the available data prove the direct responsibility of the State for the non-payment of wages to a large number of workers in public undertakings and undertakings financed by public capital. It encloses a list of 21 undertakings comprising 65,474 employees in the public sector in which the payment of wages was in arrears. (Endnote 5)
20. The CGTP-IN alleges that the Government is not adopting any new legislation to cope effectively with the situation. It claims that Legislative Decree No. 398/83 of 2 November 1983 concerning the temporary suspension of employment contracts and the reduction of normal hours of work has not been put into effect and is not designed to deal with the situation as a whole but might possibly, in theory, deal with cases where work has been suspended. It also points out that Decision No. 35/84 of 13 February 1984 governing the award of an unemployment allowance to workers whose wages are in arrears in undertakings where operations have come to a standstill affords limited means of subsistence only for a small number of workers. Finally, the CGTP-IN notes that the Government has opposed the legislative action initiated to introduce a "public guarantee of the payment of wages in arrears" on the grounds that the mere operation of the laws of the market would ensure the liquidation of undertakings said to be non-viable, thus clarifying the situation.
21. The CGTP-IN claims that the Government also refuses to use existing legal, administrative or judiciary machinery, such as the labour inspectorate, (Endnote 6) to enforce the labour laws that have been violated by the non-payment of wages. The CGTP-IN further claims that the Government must be held responsible for maintaining a system of penalties for violation of the labour laws that is absolutely inadequate and devoid of all preventive or punitive value, since the penalties are mainly in the form of fines that have been rendered out of date by years if not decades of inflation.
Observations of the Government
22. In its communication, the Government states that the failure to pay workers their wages punctually that has been observed to a varying degree in certain undertakings is a recognised fact and that it has been endeavouring to find a solution. The increasing frequency of arrears in the payment of wages and other cash benefits is due almost entirely to the difficulties faced by many undertakings because of the world economic crisis, particularly as it affects Portugal, which during the past decade has gone through a historical period of reorganisation.
23. The Government has sent the Office copies of the national laws which, in its opinion, embody the principles set out in the Convention.
24. With regard to the practical application of Convention No. 95, the Government recognises that the non-payment of wages in time and in the proper form is contrary to the provisions of the Convention and of the national legislation.
25. The Government states that it has endeavoured from the outset to find a solution. Immediate action was ordered in November 1983 to assess the situation, following which the Secretary of State for Labour on 13 February 1984 ordered that a regular and systematic analysis be made and appropriate solutions sought. In particular, the General Inspectorate of Labour must present a monthly report on the situation. (Endnote 7)
26. The Government observes that much of the difference between the overall figures quoted by the CGTP-IN and those of the General Inspectorate of Labour; which in no way diminishes the gravity of the situation stems from the fact that the former includes under "wages" all cash benefits due to the workers for the work performed. This definition is not accepted by the Government, which considers that it is technically incorrect and does not adequately reflect the various aspects of the situation.
27. In addition to the action taken by the General Inspectorate of Labour, (Endnote 8) laws and regulations have been adopted such as Decision No. 35/84 of 13 February 1984, (Endnote 9) which enables an unemployment allowance to be paid to workers whose wages are in arrears in undertakings where activity has been at a complete standstill for more than a month, and Legislative Decree No. 398/83 of 2 November 1983, (Endnote 10) respecting the temporary suspension of contracts of employment and the reduction of normal hours of work, which is not specifically aimed at the non-payment of wages but may, through the machinery it establishes, make possible the redressing of certain situations.
28. Moreover, the funds earmarked for the promotion of employment in general have been increased in the national budget for 1985 and the Council of Ministers has adopted emergency measures to cope with the most serious situations in the Setúbal area. Finally, a draft Decree instituting an unemployment insurance scheme that considerably improves the protection of workers who are unemployed as a result of the economic crisis is to be promulgated shortly.
29. As for the legislative initiatives mentioned by the CGTP-IN, the Government states that, without prejudice to the competence of the Assembly of the Republic, the sovereign legislative body, the Government has expressed its opposition to any legislation that would have the State take the place of employers who fail to meet their commitments, so as not to distort competition or even favour those guilty of violating the law. (Endnote 11)
30. The Government also stresses the role played by the Permanent Council for Consultation and Negotiation, a tripartite body set up by Legislative Decree No. 74/84 of 2 March 1984, (Endnote 12) in the search for appropriate solutions. Recommendations made by this Council have already been submitted to the Government. The Government observes that the complainant organisation refused to be represented on the Permanent Council.
31. The Government considers the assessment by the complainant organisation of the system of penalties for violation of the labour laws to be completely unfounded. As regards the inadequacy of the fines, only the penalties laid down in Legislative Decree No. 49.408 of 21 November 1965 respecting the rules governing individual contracts of employment are really out of date. Two Legislative Decrees, No. 667/76 of 5 August 1976 and No. 131/82 of 23 April 1982, have increased the fines substantially. Moreover, as regards the right to remuneration in particular, the protection afforded by the law and its effectiveness can be properly appreciated only in the light of all the consequences of an employer's violation of this right. Failure to pay remuneration punctually, for example, renders an employer liable to compensate the worker for the prejudice caused. Although intended essentially as compensation, this penalty also plays a significant preventive role. Finally, the Government recalls that, in cases of violation of the regulations governing minimum remuneration, the penalties scheduled in section 44, subsection (5), of Legislative Decree No. 519-C.1/79 of 29 December 1979 and section 13 of Legislative Decree No. 440/79 of 6 November 1979 render those guilty of infringements liable to fines amounting to twice and five times the amount due, respectively, which mitigates the effects of inflation.
32. The Government recalls that workers have free access to the courts to have the amounts owing to them recognised and paid in full and that the law empowers trade union organisations to assist plaintiffs in legal proceedings concerning the individual interests of the workers. (Endnote 13) According to the Government, the fact that the workers and trade union organisations have used their right of appeal sparingly reflects an understanding of the economic and financial circumstances of the undertakings with wages in arrears, confidence that they will recover the amounts due and a desire to avert possible bankruptcies and the effect this would have on unemployment. The Government also observes that he legal machinery guaranteeing a rapid procedure for resolving such issues is being revised.
33. The Government goes on to state that there have been few employers who have defaulted intentionally in the payment of wages or acted fraudulently in order to deprive workers of the guaranteed right to remuneration embodied in the Civil Code. (Endnote 14) On occasions when this happens, the workers have specific means of defending their right to what is due to them and the employers are liable to penalties. (Endnote 15)
34. The Government states that, as a result of the actions referred to, not only has there been progress in analysing the situation and devising appropriate measures, but also the number of workers affected has remained stationary or even declined in certain cases. (Endnote 16)
35. The Government therefore contests the allegation that its attitude has been such as to constitute a violation or the non-observance of the Convention. The payment of wages is the sole responsibility of the undertakings. The Government states, on the one had, that the rules of the national law are in line with the ratified Conventions and, on the other, that the action of the state bodies concerned, namely the courts and the labour inspectorate, which has been questioned, aims at resolving the situation. Lastly, it states that it has not refused to adopt measures to secure the observance of the ratified Conventions in question.
Conclusions of the Committee
36. The Committee notes that the situation referred to in the representation as it relates to Convention No. 95 concerns the application of Article 8, paragraph 1, and Article 12, paragraph 1, of this Convention. These provisions, which concern the regular payment of wages in full except for authorised deductions, read as follows:
Article 8
1. Deductions from wages shall be permitted only under conditions and to the extent prescribed by national laws or regulations or fixed by collective agreement or arbitration award.
..........
Article 12
1. Wages shall be paid regularly. Except where other appropriate arrangements exist which ensure the payment of wages at regular intervals, the intervals for the payment of wages shall be prescribed by national laws or regulations or fixed by collective agreement or arbitration award.
..........
37. With regard to the effect given to these provisions of the Convention in the legislation, the Committee notes the various provisions of national legislation communicated by the Government, including sections 93 and 95 of Legislative Decree No. 49.408 of 21 November 1969 to approve a new set of rules governing individual contracts of employment. (Endnote 17) Subject to examination of the first report of the Government on the application of the Convention by the regular supervisory bodies of the ILO, (Endnote 18) it appears to the Committee that the national provisions referred to meet the requirements of Article 8, paragraph 1, and Article 12, paragraph 1, of the Convention.
38. With regard to the effective application of the relevant provisions of the Convention, the Committee notes the statements by the Government recognising the reality and the seriousness of the delays in the payment of wages. (Endnote 19) The Committee notes also the recognition by the Government that the non-payment of wages is contrary to the provisions of the Convention and to those of the national legislation giving effect to it.
39. The Committee points out that, by virtue of article 19, paragraph 5(d), of the Constitution of the ILO, a Member that has ratified a Convention "will take such action as may be necessary to make effective the provisions of such Convention". The Committee refers in this respect to paragraphs 411 to 413 of the report of the Commission appointed under article 26 of the Constitution of the ILO to examine the complaint filed by the Government of Portugal concerning the observance by the Government of Liberia of the Forced Labour Convention, 1930 (No. 29). (Endnote 20) According to this Commission, where the law is consistent with the requirements of the Convention, such conformity alone is insufficient to constitute satisfactory compliance with the Convention unless the law is effectively enforced in practice.
40. In view of the foregoing, the Committee, though it notes the measures taken or envisaged by the Government to assess and remedy the situation, is bound to conclude that the Government has not secured the effective observance of the relevant provisions of the Convention.
41. In the opinion of the Committee, the effective application of the Convention, through the national provisons giving effect to it, comprises three principal aspects: supervision, appropriate penalties to prevent and punish infringements, and steps to make good the prejudice suffered.
42. The first aspect, supervision, will be dealt with in connection with Conventions Nos. 81 and 129 on labour inspection. (Endnote 21)
43. With regard to penalties, Article 15(c) of the Convention provides that "the laws or regulations giving effect to the provisions of this Convention shall ... prescribe adequate penalties ... for any violation thereof." The Committee notes that, under section 127 of the above-mentioned Legislative Decree No. 49.408, the employer is liable to a fine of from 100 to 2,000 escudos (Endnote 22) for each worker with respect to whom an infraction has been committed, for violations of sections 93 (time of payment) and 95 (set-offs and deductions) of this text. The Committee notes that the fines have been doubled under section 18 of Legislative Decree No. 667/76 of 5 August 1976, (Endnote 23) and tripled again, under section 1, subsection 1, of Legislative Decree No. 131/82 of 23 April 1982. (Endnote 24) It results from these various provisions that the fines now range from 600 to 12,000 escudos. (Endnote 25)
44. The Committee has examined the figures communicated by the Government concerning the fines imposed following the notification of delays in the payment of wages and social security contributions. It observes that, on average, they amount to 3,533 escudos (Endnote 26) per worker, whereas the unpaid remuneration amounts to 51,704 escudos (Endnote 27) per worker, to which must be added 15,382 escudos (Endnote 28) per worker owing to the social security and unemployment funds.
45. Though for lack of data the Committee is unable to express an opinion on the fines payable for violations of the legislation protecting minimum wages, (Endnote 29) it notes that the penalties referred to above do not appear to have halted the increase in the number and duration of cases of delay in the payment of wages over the period under consideration. Consequently, they cannot be considered adequate within the meaning of Article 15(c) of the Convention. (Endnote 30)
46. With regard to the measures to make good the prejudice suffered, the Committee has ot precise information at its disposal. The Government refers to the appeals procedures open to workers affected and to propose measures to ensure that they are rapid. Given the extent of the delays in the payment of wages, the Committee stresses the importance of applying an accelerated procedure and trusts that the measures envisaged by the Government will ensure the rapid recovery of their wages by the workers concerned. Where the proceedings relate to the bankruptcy or judicial liquidation of an undertaking, the Committee draws the attention of the Government to Article 11 of the Convention (Endnote 31) concerning the protection of wages in such cases and suggests that the Government examine, in consultation with the social partners, all appropriate measures including, for instance, a guarantee fund financed by undertakings.
47. With regard to the allegations of the CGTP-IN concerning the refusal of the Government to use existing legal, administrative or judiciary machinery or to adopt new and effective legal provisions to cope with the situation, the Committee considers that the information communicated by the two parties does not permit it to conclude that the Government has had such an attitude. This aspect of the representation is also examined below in connection with labour inspection.
48. With regard to the allegations concerning the direct responsibility of the Government as an employer in the public service sector, the Committee notes that the comments of the CGTP-IN and of the statement of the Government contain nothing to establish this responsibility. As far as public-sector undertakings are concerned, the Committee otes that the CGTP-IN has communicated a list of public sector undertakings entirely or partly financed by public capital and that the statement of the Government contains no information on this point. The Committee suggests that future periodical surveys of the situation drawn up by the General Inspectorate of Labour specify the legal status (public, semi-public or private) of the undertakings in arrears with the payment of wages.
49. The Committee further notes the observations of the Government regarding the economic factors - recession and unemployment - underlying the delays in the payment of wages and also the measures taken or under consideration to deal with unemployment. Although these aspects are not strictly related to the application of Convention No. 95, the Committee would nevertheless express the hope that the measures taken in this respect will be effective and have a favourable influence on the situation concerning the regular payment of wages.
50. In the light of the foregoing conclusions, the Committee recommends:
(a) that all appropriate measures be taken by the Government to secure the effective application of the provisions of the national legislation giving effect to Article 8, paragraph 1, and Article 12, paragraph 1, of the Convention, including:
(i) the precribing of adequate penalties as required by Article 15(c) of the Convention;
(ii) effective accelerated procedures enabling workers to recover rapidly and in full the amounts due to them in respect of wages, (Endnote 32) including the necessary guarantees in case of bankruptcy or judicial liquidation of the undertaking;
(b) that the Government, in the reports that it is required to submit on the Convention under article 22 of the Constitution of the ILO, provide detailed information on the measures adoped to solve the problem of delays in the payment of wages, on the results obtained by these measures and on the aspects (Endnote 33) that have not been sufficiently clarified in the course of the current procedure. The reports should in particular include information:
(i) on the number and nature of undertakings in arrears with the payment of wages, established at regular intervals so as to reflect the trend accurately;
(ii) on the number of workers affected;
(iii) on the amount and nature of the amounts owing in respect of wages, as defined in Article 1 of the Convention;
(iv) on the decisions of the courts with respect to the observance of the provisions giving effect to Articles 8 and 12 of the Convention;
(v) on the number and nature of the infringements recorded and of the penalties imposed for non-observance of sections 93 and 95 of Legislative Decree No. 49.508 referred to above, and on the number and amount of the wages recoved;
(c) that the Committee of Experts on the Application of Conventions and Recommendations continue to examine these matters on the basis of the information supplied in this way.
Holidays with Pay Convention (Revised) 1970 (No. 132)
Allegations
51. The CGTP-IN alleges infringements of the right to holidays with pay embodied in the law and in the Constitution of Portugal.
Observation of the Government
52. The Government states in its communication that a clear distinction must be made between protection of the right to holidays with pay and the guarantee of the actual payment of the remuneration corresponding to the periods of leave. The Government maintains, as regards the first point, that national law and practice are fully in conformity with the provisions of the Convention and, on the second point, that Convention No. 132 neither requires nor advises the institution of specific guarantee procedures additional to the general regulations governing the protection of wages. Consequently, the Government considers any allegation of non-observance of Convention No. 132 to be unfounded.
Conclusions of the Committee
53. The representation concerning Convention No. 132 raises the question of the application of Articles 7 and 14 of the Convention. They read as follows:
Article 7
1. Every person taking the holiday envisaged in this Convention shall receive in respect of the full period of that holiday at least his normal or average remuneration (including the cash equivalent of any part of that remuneration which is paid in kind and which is not a permanent benefit continuing whether or not the person concerned is on holiday), calculated in a manner to be determined by the competent authority or through the appropriate machinery in each country.
2. The amounts due in pursuance of paragraph 1 of this Article shall be paid to the person concerned in advance of the holiday, unless otherwise provided in an agreement applicable to him and the employer.
Article 14
Effective measures appropriate to the manner in which effect is given to the provisions of this Convention shall be taken to ensure the proper application and enforcement of regulations or provisions concerning holidays with pay, by means of adequate inspection or otherwise.
54. The Committee notes that, in the reports drawn up periodically by the General Inspectorate of Labour, (Endnote 34) amounts due in respect of holidays are calculated separately from monthly remuneration and bonuses owing to the workers and are listed under the heading "Holidays, back pay and other benefits" and that this statistical presentation makes it impossible to distinguish between the amounts due in respect of holidays and those due under the other headings. The Committee also notes that the reports of the General Inspectorate of Labour indicate a drop of about 27.2 per cent in the total amount under the above-mentioned heading between October 1983 and June 1984. The Committee notes, nevertheless, that there has in fact been a delay in the payment of unspecified amounts due in respect of holidays with pay. It therefore considers that the provisions of Article 7 stipulating that every person taking a holiday with pay must receive in respect of the full period of that holiday at least his normal or average remuneration, paid in advance of the holiday, are not fully applied.
55. Consequently, as regards Article 14 of the Convention which provides for effective measures to ensure the proper application and enforcement of regulations or provisions concerning holidays with pay, the Committee can only conclude that the application of this Article is not fully ensured.
56. As these matters also have a bearing on the payment of wages, the Committee refers in general to the recommendations in paragraph 50 above dealing with the application of Convention No. 95. It recommends in particular (point (b)(iii) of paragraph 50) the adoption of a new statistical presentation of findings of surveys so as to identify clearly the part of the remuneration relating to holidays with pay and the extension of the measures taken to ensure the punctual payment of wages advocated in respect of Convention No. 95 to cover the remuneration payable for holidays with pay under Article 7 of Convention No. 132.
B. Conventions concerning labour inspection
57. The Committee observes that the scope of Conventions Nos. 81 and 129 is covered by section 2 of the Regulations of the General Inspectorate of Labour annexed to Legislative Decree No. 327/83 of 8 July 1983, (Endnote 35) which stipulates that the terms of reference of the Labour Inspectorate shall include all branches of activity in public, private and co-operative undertakings. The Committee therefore considers, given the nature of the issues raised in the allegations of the complainant organisation and in the reply of the Government, that the application of the Labour Inspection Convention, 1947 (No. 81), and that of the Labour Inspection (Agriculture) Convention, 1969 (No. 129), may appropriately be examined together and dealt with in the same way.
Allegations
58. In the first place, the CGTP-IN alleges that the Government refuses to use the existing legal administrative and judiciary means (such as the Labour Inspectorate) responsible for ensuring the application of the labour laws that have been infringed when wages are not paid. It claims that the Government has expressly ordered the Inspectorate not to draw up reports of offences against the labour laws with a view to subsequent prosecutions but to confine itself to producing a survey of the situation for the information of the Government.
59. Secondly, the complainant organisation alleges that the Portuguese Government must be held responsible for keeping the Labour Inspectorate in a state of paralysis for lack of resources and, in support of its allegation, refers to statements made by the Inspector-General of Labour to a newspaper. (Endnote 36) According to these statements, the Labour Inspectorate was operating with only 40 per cent of the technical staff that it should have at its disposal, many officials were inclined to leave the Inspectorate because the staff list had still not been published six months after the entry into force of the regulations and they did not yet know how their occupational category would be designated, the inspectors were unable to visit undertakings because they had no means of transport, five of the 15 territorial sub-inspectorates had not yet been set up, and five inspectorates and seven sub-inspectorates had no chief - which meant that the directors of the regional centres had to make the journey whenever the report of an offence had to be confirmed.
60. Lastly, the CGTP-IN states that it has been obliged to apply formally for action by the Labour Inspectorate - which would not have acted on its own initiative as it should have done, the situation being widespread and generally known - by sending it a letter on 21 December 1983 containing a list of the undertakings in arrears with the payment of wages. According to the CGTP-IN, the replies of the Labour Inspectorate show that in virtually every case it restricted itself to drawing up an inventory of the amounts due to the workers without taking any measure to punish infringements of the labour laws.
Observations of the Government
61. The Government states that the allegation that it expressly ordered the Labour Inspectorate not to draw up reports of offences against the labour laws is completely unfounded. It observes that the allegation conflicts with the contents of the document submitted by the complainant organisation, which refers to the instructions given by the responsible authorities to the Labour Inspectorate to intensify its action against the undertakings found to be in arrears with the payment of wages and to the specific measures taken to enable it to do so.
62. The Government emphasises that the Labour Inspectorate, in the course of its activities and in the performance of the duties conferred upon it by Legislative Decree No. 372/83 of 8 July 1983 to issue the Regulations of the Inspectorate, has invariably taken appropriate action whenever employers have failed to meet their obligations concerning wages. Because of the economic difficulties facing the country, the Labour Inspectorate has focused its activities on its educational and advisory role, as advocated in international standards and in its own regulations. The Government adds that the Inspectorate always endeavours to make employers aware of the situation and even to bring pressure to bear on them to put matters right so as to avoid legal proceedings, which, because they are slow, are generally to the disadvantage of the worker. Where these attempts fail and in cases of fraud or bad faith on the part of the employers, the Labour Inspectorate has firmly brought into play the repressive machinery provided for in the law.
63. The decision of the Secretary of State for Labour dated 13 February 1984 (Endnote 37) requires the General Inspectorate of Labour, along with other services to submit a monthly report on each undertaking containing:
(i) an indication of any monthly remuneration not paid punctually, in full or in part;
(ii) an indication of any delays in the payment of retroactive wage increases resulting from the entry into force of collective agreements providing for retroactivity;
(iii) an indication of the delay in the payment of holidays with pay, holiday allowances and Christmas bonuses;
(iv) the amount owing to the unemployment fund;
(v) the amount owing to the social security fund.
64. According to the Government, specific procedures have been entrusted to the Labour Inspectorate as a result of the monthly surveys. The nature of the procedures depends on the situation of the undertakings - mainly on whether they are considered likely to survive or not. In respect of undertakings deemed unlikely to survive, the Government states that the appropriate procedure has been initiated in order to bring pressure to bear on them. In respect of those considered likely to survive, the following instructions have been given:
(i) where there has been fraud or bad faith, an appropriate report is to be drawn up of the offence and coercive measures are to be brought into play immediately;
(ii) where the non-payment of wages has been due to the economic crisis or to temporary financial difficulties, persuasion is to be exercised to induce the employer to meet his commitments and subsequent developments are to be followed up, without prejudice to the right of the workers and of their representatives to take the matter to court.
65. The Government states that between October 1983 and May 1984 the General Inspectorate of Labour took action 2,555 times in respect of delays in the payment of wages. (Endnote 38)
66. As to the failure of the General Inspectorate of Labour to act on its own initiative, the Government states that this is attributable in part to the volume of requests for action and of demands stemming from the trade unions and the workers and that these demands have been met, as can be seen from the lists of undertakings visited by the Inspectorate on the demand of the CGTP-IN.
67. The Government recognises that the General Inspectorate of Labour does not possess all the human, material and financial resources that it needs to function altogether satisfactorily. The Government emphasises, however, that the figures referred to above prove that activity has not been negligible and that it has taken measures to remedy the situation as far as possible within the budgetary limits imposed by the general economic state of the country. These measures are as follows:
(i) an immediate increase in budgetary credits to enable the labour inspectors to be mobilised and to take stronger action with the undertakings;
(ii) filling of current vacancies and recruitment by competition, within the framework of the reorganisation resulting from he 1983 regulations;
(iii) provision of means of transport (16 vehicles in addition to the nine delivered in March 1984);
(iv) an increase in the proposed budget for the General Inspectorate of Labour for 1985.
Conclusions of the Committee
68. The Committee notes that the situation referred to in the representation relates to the application of Articles 6, 10, 11, 16, 17 and 18 of the Labour Inspection Convention, 1947 (No. 81), and Articles 8(1), 14, 15, 21, 22 and 23 of the Labour Inspection (Agriculture) Convention, 1969 (No. 129). These Articles concern (a) the status of the labour inspection staff, (b) the means of action (numerical strength and material resources), and (c) the activities of the labour inspectorate (visits and penalties). These various aspects are dealt with in turn below.
(a) Status of the labour inspection staff
69. The Articles concerning the status of the labour inspection staff that are intended to ensure their independence read as follows:
Convention No. 81
Article 6
The inspection staff shall be composed of public officials whose status and conditions of service are such that they are assured of stability of employment and are independent of changes of government and of improper external influences.
Convention No. 129
Article 8
1. The labour inspection staff in agriculture shall be composed of public officials whose status and conditions of service are such that they are assured of stability of employment and are independent of changes of government and of improper external influences.
..........
70. With regard to the independence of the inspection staff, the Committee notes the provisions of section 1, subsections (1) and (3), of Legislative Decree No. 327/83 of 8 July 1983 to issue the Regulations of the General Inspectorate of Labour, which provide that the Labour Inspectorate shall be a service enjoying administrative autonomy under the direct authority of the Ministry of Labour and, in the performance of its activities, technical autonomy and independence and whose staff shall be endowed with the necessary authority. Subject to the examination of these provisions by the regular supervisory bodies of the ILO, the Committee considers that they give statutory effect to the principle of independence set out in Article 6 of Convention No. 81 and Article 8, paragraph 1, of Convention No. 129. The Committee also notes that the application of the relevant Article of Convention No. 81 (ratified in 1962) has not been the subject of comments by the Committee of Experts on the Application of Conventions and Recommendations.
71. The Committee notes the allegation by the CGTP-IN that the Labour Inspectorate has received instructions not to draw up reports in the event of delays in the payment of wages. The allegation is contained in a CGTP-IN press release and has apparently not been refuted. (Endnote 39) The Committee further notes the statement by the Government that the allegation of the CGTP-IN is totally unfounded and contradicts the information contained in one of the documents submitted by the complainant organisation. (Endnote 40)
72. The Committee notes that the press article containing the statement of the Inspector-General of Labour regarding the difficulties of the Inspectorate in fulfilling its duties does not make it possible to settle the question whether orders have been given not to draw up reports of offences and, therefore, the question whether improper external influences have been brought to bear on the Inspectorate. The press article first refers to reports of offences in connection with the fact that posts of chiefs of territorial inspection services have been vacant and that the directors of the regional services themselves had have to countersign the reports, and refers to them again in a review of the activities of the Inspectorate in 1983, when it was active in 500 undertakings and drew up 100 reports of offences. On the other hand, it is clear from the statements reported in the press article that instructions were given by the Ministry of Labour in January 1984 for the Labour Inspectorate to intensify its action against undertakings in arrears with the payment of wages, though the precise content of these instructions is not specified.
73. As to the data communicated by the Government in its observations on the number of reports of offences, the Committee notes that, whereas the General Inspectorate of Labour acted 2,555 times between October 1983 and March 1984, reports of offences were drawn up in 455 cases (17.8 per cent of the total) and payment was made voluntarily in 922 cases (36.1 per cent of the total). The Committee observes that the Government has sent no information on the results obtained by the Labour Inspectorate in the 1,178 remaining cases (46.1 per cent of the total).
74. The Committee also notes the statement by the Minister of Labour in the course of the parliamentary debate on 16 February 1984 (Endnote 41) to the effect that the General Inspectorate of Labour had drawn up reports of offences in 86 undertakings involving 1,275 workers, whereas in the other cases either there had been no grounds for imposing penalties or efforts were continuing to secure the payment of the wages.
75. Finally, the Committee notes the statement by the Government that instructions have been given to the Labour Inspectorate under the system of monthly surveys introduced by the Decision of the Secretary of State for Labour dated 13 February 1984. Where the non-payment of wages is due to the economic crisis or temporary financial difficulties, persuasion is to be exercised to induce the employer to meet his commitments and further developments are to be followed, without prejudice to the right of the workers and of their representatives to take the matter to court. (Endnote 42)
76. Recalling that Article 17, paragraph 2, of Convention No. 81 and Article 22, paragraph 2, of Convention No. 129 stipulate that it shall be left to the discretion of labour inspectors to give warning and advice instead of instituting or recommending proceedings, the Committee considers that the mere number of records of offences drawn up for delays in the payment of wages - which appears to be on the increase since February 1984 (Endnote 43) - is not conclusive evidence that the Government gave the alleged instructions and in doing so failed to observe Article 6 of Convention No. 81 and Article 8, paragraph 1, of Convention No. 129. As to the instructions to exercise persuasion where the non-payment of wages is not attributable to bad faith or fraudulent intent, the Committee considers, in the light of the information communicated on the activities of the Labour Inspectorate, that these instructions do not appear to constitute a formal infringement of the said provisions of the Conventions.
(b) Means of action (numerical strength and material resources) of the Labour Inspectorate
77. The Articles relating to the means of action (numerical strength and material resources) that should be available to the Labour Inspectorate read as follows:
Convention No. 81
Article 10
The number of labour inspectors shall be sufficient to secure the effective discharge of the duties of the inspectorate and shall be determined with due regard for:
(a) the importance of the duties which inspectors have to perform, in particular -
(i) the number, nature, size and situation of the workplaces liable to inspection;
(ii) the number and classes of workers employed in such workplaces; and
(iii) the number and complexity of the legal provisions to be enforced;
(b) the material means placed at the disposal of the inspectors; and
(c) the practical conditions under which visits of inspection must be carried out in order to be effective.
Article 11
1. The competent authority shall make the necessary arrangements to furnish labour inspectors with -
(a) local offices, suitably equipped in accordance with the requirements of the service, and accessible to all persons concerned;
(b) the transport facilities necessary for the performance of their duties in cases where suitable public facilities do not exist.
2. The competent authority shall make the necessary arrangements to reimburse to labour inspectors any travelling and incidental expenses which may be necessary for the performance of their duties.
Convention No. 129
Article 14
Arrangements shall be made to ensure that the number of labour inspectors in agriculture is sufficient to secure the effective discharge of the duties of the inspectorate and is determined with due regard for -
(a) the importance of the duties which inspectors have to perform, in particular -
(i) the number, nature, size and situation of the agricultural undertakings liable to inspection;
(ii) the number and classes of persons working in such undertakings; and
(iii) the number and complexity of the legal provisions to be enforced;
(b) the material means placed at the disposal of the inspectors; and
(c) the practical conditions under which visits of inspection must be carried out in order to be effective.
Article 15
1. The competent authority shall make the necessary arrangements to furnish labour inspectors in agriculture with -
(a) local offices so located as to take account of the geographical situation of the agricultural undertakings and of the means of communication, suitably equipped in accordance with the requirements of the service and, in so far as possible, accessible to the persons concerned;
(b) the transport facilities necessary for the performance of their duties in cases where suitable public facilities do not exist.
2. The competent authority shall make the necessary arrangements to reimburse to labour inspectors in agriculture any travelling and incidental expenses which may be necessary for the performance of their duties.
78. With regard to the application of Articles 10 and 11 of Convention No. 81 and Articles 14 and 15 of Convention No. 129, the Committee notes that the Government recognises that the General Inspectorate of Labour does not yet possess all the human, material and financial resources that it needs to operate satisfactorily. This is clear from the statement by the Government that the volume of requests for action and of demands stemming from the trade unions and the workers that have been satisfied explains in part the lack of initiative of the Inspectorate. The Committee considers that the effective collaboration between officials of the Labour Inspectorate and employers and workers or their organisations referred to in Article 5(b) of Convention No. 81 and Article 13 of Convention No. 129, invoked by the Government, cannot justify the lack of initiative on the part of the inspection services. Although it notes that measures have been taken subsequently or will yet be taken to remedy the situation, the Committee finds that the provisions of Articles 10 and 11 of Convention No. 81 and Articles 14 and 15 of Convention No. 129 are not fully applied.
79. The Committee considers that the most important single measure that can be taken to enable the Inspectorate to fulfil its duties effectively is the substantial reinforcement of all the means made available to the labour inspection services under the regulations contained in Legislative Decree No. 327/83 of 8 July 1983. The Committee therefore recommends the Government to give particularly high priority to this aspect of the matter.
(c) Activities of the Labour Inspectorate (inspection visits and penalties)
80. The Articles dealing with the activities of the Labour Inspectorate (inspection visits, legal proceedings and penalties) read as follows:
Convention No. 81
Article 16
Workplaces shall be inspected as often and as thoroughly as is necessary to ensure the effective application of the relevant legal provisions.
Article 17
1. Persons who violate or neglect to observe legal provisions enforceable by labour inspectors shall be liable to prompt legal proceedings without previous warning: Provided that exceptions may be made by national laws or regulations in respect of cases in which previous notice to carry out remedial or preventive measures is to be given.
2. It shall be left to the discretion of labour inspectors to give warning and advice instead of instituting or recommending proceedings.
Article 18
Adequate penalities for violations of the legal provisions enforceable by labour inspectors and for obstructing labour inspectors in the performance of their duties shall be provided for by national laws or regulations and effectively enforced.
Convention No. 129
Article 21
Agricultural undertakings shall be inspected as often and as thoroughly as is necessary to ensure the effective application of the relevant legal provisions.
Article 22
1. Persons who violate or neglect to observe legal provisions enforceable by labour inspectors in agriculture shall be liable to prompt legal or administrative proceedings without previous warning: Provided that exceptions may be made by national laws or regulations in respect of cases in which previous notice to carry out remedial or preventive measures is to be given.
2. It shall be left to the discretion of labour inspectors to give warning and advice instead of instituting or recommending proceedings.
Article 24
Adequate penalties for violations of the legal provisions enforceable by labour inspectors in agriculture and for obstructing labour inspectors in the performance of their duties shall be provided for by national laws or regulations and effectively enforced.
81. The Committee recalls the information to the effect that the General Inspectorate of Labour was instructed before February 1984 to intensify its action in respect of undertakings in arrears with the payment of wages. Not knowing the exact contents of these instructions, the Committee is not in a position to consider their conformity with the aforementioned provisions of the Conventions in question.
82. It further notes the instructions contained in the Decision of the Secretary of State for Labour dated 13 February 1984, (Endnote 44) including those intended for the General Inspectorate of Labour, which provide that:
(i) the Inspector-General of Labour shall co-ordinate the collection of data on wages in arrears submitted by the regional services on the basis of a single questionnaire;
(ii) each month, from February 1984, the regional services shall communicte to the Inspector-General of Labour information concerning the steps taken and contemplated in each undertaking where the payment of wages is in arrears;
(iii) the Inspector-General of Labour shall notify to all regional services the undertakings that are in receipt of fiancial aid from the Public Revenue Department for the maintenance of employments in order to ensure the active supervision of these undertakings.
The Committee notes that these instructions are designed to secure information on undertakings in arrears with the payment of wages. It notes the new factors in the understanding of the situation, which should make suitable action possible, if not to effect a remedy, at least to restrict the extent of the situation but observes that the instructions contained in the Decision of the Secretary of State for Labour dated 13 February 1984 do not appear to have a direct bearing on the application of Article 16 of Convention No. 81 and Article 21 of Convention No. 129 concerning the frequency and thoroughness of inspection visits necessary to ensure the effective application of the relevant legal provisions.
83. The Committee has also examined the data communicated by the Government on inspection visits (Endnote 45) and has some difficulties regarding the different figures contained in the observations of the Government and in the report of the Labour Inspectorate. It understands that these frequently significant differences are due to the choice of period of reference (October 1983 to May 1984, February 1984 to June 1984), to the use of statistical groups that are not defined precisely - such as that of undertakings in a situation of non-compliance with obligations unrelated to remuneration in the form of wages (empresas em situaçao de incumplimento no tocante a remuneraçoes salariais) - which makes any comparison impossible, or they are even due to the very manner in which the statistical series are established. Whatever the explanation, the Committee considers that the resulting lack of clarity is not conducive to a proper appreciation of the situation or to an accurate assessment of the activities of the Inspectorate concering the payment of wages. It can only recommend the Government to find a solution to the problem by presenting the data on inspection visits in such a way that the results of this activity can be apprehended fully and unambiguously.
84. With regard to the legal proceedings and penalities in respect of infringements, the Committee refers to paragraph 45 of its report, in which it notes that the penalties laid down do not appear to have halted the increase in the number and duration of cases of delay in the payment of wages. The Committee observes that, under section 3, subsection 1(a), of the Regulations of the General Inspectorate of Labour, the Inspectorate is responsible for enforcing the penalties. Consequently, the Committee considers that, irrespective of whether or not the penalties are adequate, the question also arises whether they are "effectively enforced" (Article l8 of Convention No. 81 and Article 24 of Convention No. 129), without prejudice to the discretion allowed to the inspector to choose between legal proceedings and warnings or advice (Article l7, paragraph 2, of Convention No. 81 and Article 22, paragraph 2, of Convention No. 129). The Committee lacks the necessary information to reach any conclusion on this matter. It recalls, however, that in 46.1 per cent of cases of action by the Labour Inspectorate (Endnote 46) there is no indication of any further action taken or of any results obtained.
85. In the light of the foregoing conclusions, the Committee recommends:
(a) that all appropriate steps be taken to ensure the effective enforcement of Articles 10, 11 and 16 of Convention No. 81 and Articles 14, 15 and 21 of Convention No. 129, and in particular:
(i) that the labour inspection staff be reinforced within the required time by recruitment, taking into account the provisions of Article 7 of Convention No. 81 and of Article 9 of Convention No. 129 and that vacant posts be filled;
(ii) that the necessary material and technical means be made available to the General Inspectorate of Labour;
(b) with reference to paragraph 84 of this report, that, whenever necessary, penalties for violations of the legal provisions enforceable by the labour inspectors be actually imposed, in accordance with Article l8 of Convention No. 81 and Article 24 of Convention No. 129;
(c) that the Government include in the reports that it is required to submit under article 22 of the Constitution of the ILO detailed information on -
(i) the numerical strength of the inspection staff and the number of inspectors in the various classes, for both the central and the regional services and especially the number and functions of newly recruited staff;
(ii) the geographical distribution of the inspection services, with an indication of posts that are vacant;
(iii) changes in the budget of the General Inspectorate of Laobur in respect of both staff and material resources;
(iv) the statistics of inspection visits, offences recorded and penalties imposed;
(d) that the Committee of Experts on the Application of Conventions and Recommendations continue to examine these matters on the basis of the information supplied in this way.
C. Conventions concerning forced labour
Allegations
86. The CGTP-IN states that the practice of delay in the payment of wages may be considered to come within the definition of the conditions determining fored labour, whose abolition is the purpose of Convention No. 105. It points out that the preamble to the Convention expressly establishes a connection between forced labour and failure to pay wages regularly and in the manner provided for by the Protection of Wages Convention, 1949 (No. 95).
87. The complainant organisation considers that, once the persistent non-payment of wages under existing contracts of employment ceases to be marginal and threatens to become general practice in a society, it goes beyond the violation of the right to wages and jeopardises the freedom to work itself. The CGTP-IN states that, when such a practice occurs in a general climate of rising unemployment, the inevitable result is that the worker, who is to all intents and purposes compelled to work without payment, is deprived of "a genuine possibility of terminating his employment", a situation expressly linked to the idea of forced labour by the preamble to Convention No. 105.
Observations of the Government
88. The Government states that the allegation by the complainant organisation regarding the existence of situations of forced labour is totally unfounded.
89. The Government observes that there is no provision in the national legislation that permits or encourages the existence of such situations. Under the Portuguese legal system, obligations concerning the work of employed persons are governed by the principle of individual autonomy and are based on the freely expressed will of the worker. The same applies to the termination of such obligations: a worker may end the employment relation on his own initiative, by giving notice. The Government observes that, in the case of the non-payment of wages, a worker may terminate his contract without notice in accordance with section 25, subsection 1(d), of Legislative Decree No. 372-A/75 respecting the termination of contracts of employment. (Endnote 47)
90. The Government states that there is no connection between delay in the payment of wages and the definition of forced labour under Article 2 of Convention No. 29, which refers to all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily, and that since this definition also applies to Convention No. 105 there is similarly no connection between delay in the payment of wages and the situations referred to in Article 1 of Convention No. 105.
91. In the view of the Government, it is impossible to establish a link between the delay in the payment of wages and the alleged restriction of the freedom to work without advancing some intention on the part of the employer to use this as a means of forcing the worker to maintain the employment relation. The Government stresses that the decision to maintain the employment relation despite the delay in the payment of remuneration is freely assumed by the workers, who thereby manifest their confidence in the economic recovery of the undertaking and in the possibility of obtaining the wages owing to them in full.
Conclusions of the Committee
92. The matter raised by the representation relates to Article 2, paragraph 1, of Convention No. 29 and Article 1 of Convention No. 105, which read as follows:
Convention No. 29
Article 2
1. For the purposes of this Convention, the term "forced or compulsory labour" shall mean all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily.
Convention No. 105
Article 1
Each Member of the International Labour Organisation which ratifies this Convention undertakes to suppress and not to make use of any form of forced or compulsory labour -
(a) as a means of political coercion or education or as a punishment for holding or expressing political views or views ideologically opposed to the established political, social or economic system;
(b) as a method of mobilising and using labour for purposes of economic development;
(c) as a means of labour discipline;
(d) as a punishment for having participated in strikes;
(e) as a means of racial, social, national or religious discrimination.
93. The Committee notes the statement by the Government to the effect that no provision in the national legislation permits or encourages the existence of a situation of forced or compulsory labour. The Committee observes in this connection that Conventions Nos. 29 and 105 are not currently the subject of any observation on this point by the Committee of Experts on the Application of Conventions and Recommendations.
94. The Committee notes further that the Government, in support of its statement, refers to sections 93 and 95 of Legislative Decree No. 49.408 of 21 November 1969 to approve a new set of rules governing individual contracts of employment, indicating them as rules in its municipal law that lead to the elimination of all possibility of making freedom to work conditional on the frequency and mode of the payment of wages. The Committee notes, nevertheless, that the Government has recognised that these provisions, which relate to times of payment and set-offs and deductions, were not applied in undertakings in arrears with the payment of wages; (Endnote 48) this aspect is dealt with elsewhere in the present report. (Endnote 49)
95. The Committee notes that, according to the CGTP-IN, the persistent non-payment of wages in times of unemployment jeopardises the freedom of workers to leave their employment.
96. In the opinion of the Committee, such a situation, because of the uncertainty surrounding the payment of wages due and unpaid, probably does make it difficult for the workers affected to exercise their right to leave their employment, despite the fact that the right is guaranteed by national legislation. Such difficulty must be accentuated by the uncertainty of being able to find other work in times of unemployment.
97. On the other hand, for such a situation to be covered by Conventions Nos. 29 and 105, it would have to emcompass the circumstances constituting forced labour as defined by Article 2, paragraph 1, of Convention No. 29. Although the difficulties referred to above suggest that the situation is not accepted "voluntarily" by the workers, the Committee nevertheless considers that the risk of not finding another job because of the general climate of rising unemployment cannot, in itself, be treated as the threat of a penalty designed to force a worker to remain in the service of his employer.
98. The Committee notes further that the failure to pay wages punctually dispenses the worker from the obligation to give notice of termination of the contract of employment, (Endnote 50) the effects of which would then be considred the responsibility of the employer, especially as regards the worker's entitlement to unemployment benefits. The Committee also notes that the worker's departure under such circumstances does not affect his legal rights in respect of his claims on the undertaking.
99. In view of the foregoing, the Committee considers that the allegations of the CGTP-IN regarding the situation examined here do not contain the required factors for the Committee to conclude that a situation of forced labour exists in accordance with the definition of Article 2, paragraph 1, of Convention No. 29 or in the circumstances envisaged by Article 1 of Convention No. 105.
Recommendations of the Committee
100. The Committee recommends the Governing Body:
(1) to approve the present report and, in particular:
(a) regarding the Protection of Wages Convention, 1949 (No. 95), and the Holidays with Pay Convention (Revised), 1970 (No. 132), the recommendations of the Committee stated in paragraphs 50 and 56 of the report, respectively:
(b) regarding the Labour Inspection Convention, 1947 (No. 81) and the Labour Inspection (Agriculture) Convention, 1969 (No. 129), the recommendations of the Committee stated in paragraph 85 of the report;
(c) regarding the Forced Labour Convention, 1930 (No. 29) and the Abolition of Forced Labur Convention, 1957 (No. 105), the conclusions of the Committee stated in paragraph 99 of the report; and
(d) that, having regard to the seriousness and urgency of the situation, reports under article 22 of the ILO Constitution concerning Conventions Nos. 81, 95, 129 and 132 shall be supplied in any case by the Government for the period ending 30 June 1985;
(2) to declare closed the procedure initiated before the Governing Body following the representation made by the General Confederation of Portuguese Workers with respect to the observance by Portugal of the Forced Labour Convention, 1930 (No. 29), the Labour Inspection Convention, 1947 (No. 81), the Protection of Wages Convention, 1949 (No. 95), the Abolition of Forced Labour Convention, 1957 (No. 105), the Labour Inspection (Agriculture) Conventon, 1969 (No. 129), and the Holidays with Pay Convention (Revised), 1970 (No. 132).
Geneva, 21 February 1985. (Signed) G. Falchi
Chairman
N. Saïd
M. Blondel
Endnote 1
Convention No. 29 ratified on 26.6.1956;
Convention No. 81 ratified on 12.2.1962;
Convention No. 87 ratified on 14.10.1977;
Convention No. 95 ratified on 24.2.1983;
Convention No. 98 ratified on 1.7.1964;
Convention No. 105 ratified on 23.11.1959;
Convention No. 129 ratified on 24.2.1983;
Convention No. 132 ratified on 17.3.1981;
Convention No. 135 ratified on 31.5.1976.
Endnote 2
See Official Bulletin, Vol. LXIV, 1981, Series A, No. 1, pp. 93-95.
Endnote 3
Document GB.226/13/10.
Endnote 4
Document GB.228/10/10.
Endnote 5
Appendix II of Document No. 1, "Report", communicated by the CGTP-IN in support of its representation.
Endnote 6
See the conclusions of the Committee regarding the observance of the Conventions on labour inspection, paras. 68-85 below.
Endnote 7
Table I: Undertakings with wages in arrears and number of workers affected.
Monthly wages in arrears (1) Monthly remuneration
and other benefits in
arrears (2)
No. of No. of No. of No. of
undertakings workers undertakings workers
1. 10.1983 - - 425 93 870
31. 10.1983 369 62 451 - -
1. 12.1983 - - 449 94 897
31. 01.1984 316 50 552 633 92 274
31. 03.1984 345 51 968 700 105 017
31. 05.1984 350 45 067 679 98 866
(1) Undertakings in arrears with the payment of monthly wages proper.
(2) Undertakings in arrears with the payment of monthly remuneration (comprising wages and other benefits).
Source: Report of the General Inspectorate of Labour (doc. GAT/IGT/1984).
Endnote 8
See below, paras. 61-67.
Endnote 9
Official Gazette, 1st Series, No. 37 of 13 February 1984, pp. 481-483.
Endnote 10
Official Gazette, 1st Series, No. 252 of 2 November 1983, pp. 3738-3743.
Endnote 11
The Committee notes that measures had been adopted previously to permit state intervention. For example, Decision No. 375/79 of 24 December 1979 (Official Gazette, 1st Series, No. 295, pp. 3332-3334) authorised the State in certain circumstances to take the place of undertakings that owed money to their workers. Legislative Decree No. 445/80 of 4 October 1980 (Official Gazette, 1st Series, No. 230 of 4 October 1980, pp. 3124-3128) reinforced these provisions by establishing the principle of aid for undertakings unable to pay their wages so as to guarantee the workers a substitute income.
Endnote 12
Official Gazette, 1st Series, No. 53 of 2 March 1984, pp. 729-732.
Endnote 13
Section 6, subsection 3, of the Code of Labour Procedure read in conjunction with section 183. Order of 29 February 1984, Official Gazette, 2nd Series, No. 69 of 22 March 1984, p. 2520.
Endnote 14
Section 737, subsection 1(d) of the Civil Code provides that amounts owing to workers or their dependants by virtue of a contract of employment or of the violation or breaking of such a contract entitle the creditors to a general prior claim on movable property.
Endnote 15
Sections 324-327 of the Penal Code provide for imprisonment of from one to five years for those guilty of offences against property rights.
Endnote 16
Table II: Wages in arrears: Comparative trends
Number of Number of Monthly Leave, back
under- workers wages in pay and
takings arrears (1) other
benefits in
arrears (1)
31/01/84 2.654.706 1.185.027
I(2) 633 92.274 16.801.000 7.500.000
2. 654.706 605.047
II(3) 316 50.552 16.801.000 3.829.000
31/03/84 2.989.042 1.212.777
I(2) 700 105.017 18.681.000 7.579.000
2. 989.042 632. 767
II(3) 345 51.968 18.681.000 3.954.000
31/05/84 2.947.719 744.374
I(2) 679 96.866 18.656.000 4.711.000
2. 947.719 164.364
II(3) 350 45.067 18.656.000 1.048.000
Holiday and Social Total (1)
Christmas security and
bonuses in unemployment
arrears (1) contributions
in arrears (1)
31/01/84 1.172.574 16.589.025 21.603.332
I(2) 7.421.000 104.993.000 136.717.000
777. 291 10.139.952 14.176.996
II(3) 4.919.000 64.176.000 89.727.000
31/03/84 1.220.217 17.398.729 22.820.765
I(2) 7.626.000 108.742.000 142.629.000
824. 934 10.949.656 15.396.399
II(3) 5.155.000 68.435.000 96.227.000
31/05/84 964.656 16.824.020 21.480.769
I(2) 6.105.000 106.481.000 135.954.000
569. 373 10.374.947 14.056.403
II(3) 3.603.000 65.664.000 88.964.000
(1) The first figure shows the amount in arrears in contos (1 conto = 1,000 escudos). The lower line shows the same amount in US dollars (1 dollar = 0.16 conto).
(2) All undertakings surveyed.
(3) Undertakings recognised as being in arrears with the payment of wages.
Source: General Inspectorate of Labour monthly surveys.
Endnote 17
The relevant provisions read as follows:
93. Time of payment. (1) Remuneration shall be paid at regular fixed intervals, which shall be weekly, forthnightly or every calendar month, except where otherwise stipulated or determined by prevailing custom.
.....
95. Set-offs and deductions. (1) The employer shall not set off against the remuneration any claims he may have against the worker or withhold or deduct any amounts from the remuneration referred to.
.....
Endnote 18
This report will be due in 1985.
Endnote 19
(a) The differences observed between the figures of the government and those obtained fom trade union sources do not affect the fact that wages are in arrears, whatever the cause, but only the extent of the problem. With respect to the figures communicated by the Government (see table 1), the distinction drawn between undertakings in arrears with the payment of wages proper and undertakings in arrears with the payment of increases, bonuses and social security and unemployment contributions does not, in the opinion of the Committee, appear to be justified in the light of section 82, subsection 2, of Legislative Decree No. 49.408. According to those provisions, remuneration comprises basic pay and all other regular and periodic benefits granted directly or indirectly, in cash or in kind. On this point, reference should be made to the definition of the term "wages" in Article 1 of Convention No. 95.
(b) In the absence of any detailed information on the methodology and criteria used by the complainant organisation and by the General Inspectorate of Labour in their surveys, the Committee notes that the surveys are not comprehensive and therefore give only an indication of magnitude. Judging from available data, between 2.5 per cent and 5.2 per cent of the entire wage-earning workforce in Portugal can be estimated to have been affected by delays in the payment of wages in the first quarter of 1984.
(c) According to a report communicated by the Government, the worsening of unemployment in 1983 was to some extent offset by various circumstances such as the granting of aid to undertakings and the appearance of the new practice of delays in the payment of wages. (Central Planning Department report on economic trends in 1983, Secretariat of State for Planning, October 1984, p. 121.)
Endnote 20
Official Bulletin, Vol. XLVI, Supplement II, April 1963, pp. 163-164.
Endnote 21
See paras. 68-83 below.
Endnote 22
From 0.6 to 12.5 US dollars (US$1 = 160 escudos).
Endnote 23
Official Gazette, 1st Series, No. 182 of 5 August 1976, pp. 1921-1927.
Endnote 24
Official Gazette, 1st Series, No. 94 of 23 April 1982, p. 984.
Endnote 25
From 3.25 to 75 US dollars.
Endnote 26
US$22.
Endnote 27
US$323.
Endnote 28
US$96.
Endnote 29
See para. 31 above.
Endnote 30
The matter of penalties will also be discussed in connection with Conventions Nos. 81 and 129. See paras. 69-76 and 84 below.
Endnote 31
Article 11 of Convention No. 95:
1. In the event of the bankruptcy or judicial liquidation of an undertaking, the workers employed therein shall be treated as privileged creditors either as regards wages due to them for service rendered during such a period prior to the bankruptcy or judicial liquidation as may be prescribed by national laws or regulations, or as regards wages up to a prescribed amount as may be determined by national laws or regulations.
2. Wages constituting a privileged debt shall be paid in full before ordinary creditors may establish any claim to a share of the assets.
Endnote 32
Portugal has ratified the Minimum Wage-Fixing Machinery Convention, 1928 (No. 26), Article 4, paragraph 2, of which provides for the existence of procedures for recovering wages due to a worker.
Endnote 33
See para. 48 above.
Endnote 34
General Inspectorate of Labour report on undertakings in arrears with the payment of wages between October 1983 and June 1984 (doc. GAT/IGT/1984) and report on the trend in wages in arrears between 1 October 1983 and 31 May 1984 (doc. GAT/IGT/1984).
Endnote 35
Official Gazette, 1st Series, No. 155 of 8 July 1983, pp. 2474-2498.
Endnote 36
Document No. 16, communicated by the CGTP-IN, SEMANARIO, 12 February 1984, "The General Inspectorate of Labour: 'It's platonic, it's lyrical, it's poetic ...'".
Endnote 37
Appendix II to the observations of the Government.
Endnote 38
Table III: Activities of the Labour Inspectorate, October 1983-May 1984
No. of offences No. of inspection
reported visits carried out
with voluntary
payments
Total 455 922
Workers affected 8 076 31 509
Fines imposed 28 540 000 esc. -
178 370 -
Wages in arrears 417 567 000 esc. -
2 609 790 $ -
Remuneration paid - 2 823 483 000 esc.
- 17 646 700 $
Amounts owing to the 92 172 000 esc. -
Social Security 582 300 $ -
Debts paid to the Social - 310 000 000 esc.
Security - 1 937 000 $
Amounts owing to the 31 055 000 esc. -
Unemployment Fund 194 000 $ -
Debts paid to the - 76 855 000 esc.
Unemployment Fund - 480 300 $
Endnote 39
Document No. 15 communicated by the CGTP-IN "Declaration by the CGTP-IN following an interview granted by the Ministry of Labour" (press release of 23 January 1984).
Endnote 40
See paragraph 59 above.
Endnote 41
Document No. 9 communicated by the CGTP-IN, Journal of the Assembly of the Republic, 1st Series, No. 76, pp. 3323-3324.
Endnote 42
See paragraph 64 above.
Endnote 43
See paragraph 73 above.
Endnote 44
See para. 63 above.
Endnote 45
Annex V of the report of the Government, "Report of the Labour Inspectorate on its activities in undertakings in arrears with the payment of wages", document GAT/IGT/84.
Endnote 46
See paragraph 73 above.
Endnote 47
Official Gazette, 1st Series, No. 162 of 16 July 1975, pp. 984-(1), 984-(5).
Endnote 48
See para. 24 above.
Endnote 49
See paras. 36-50 above.
Endnote 50
Section 25, para. 1, of Legislative Decree No. 372-A/75 of 16 July 1975 respecting the cessation of individual contracts of work.