Informe definitivo - Informe núm. 268, Noviembre 1989

Caso núm. 1497 (Portugal) - Fecha de presentación de la queja:: 10-MAY-89 - Cerrado

1. 195. The complaint presented by the Trade Union of Casino Croupiers is contained in communications dated 10 May and 23 June 1989. The Government sent its observations in a communication dated 13 September 1989.
2. 196. Portugal has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 197. In its communication dated 10 May 1989, the Trade Union of Casino Croupiers states that it is a trade union which was legally set up under the terms of Portuguese legislation, has nation-wide coverage and groups together all occupational categories of workers employed in gambling establishments, and represents 98 per cent of all casino croupiers. The complainant states that, as the representative of the workers employed in gaming rooms, it wishes to present a complaint against the Government of Portugal for its publication of Regulatory Decision No. 24/89 of 15 March 1989 issued by the Ministry of Employment and Social Security.
2. 198. The Trade Union states that its complaint is based on the following facts:
   • - on 28 March 1987 the Secretary of Employment and Vocational Training published Regulatory Decision No. 33/87 setting up a working group to draw up rules governing the distribution of tips paid to casino croupiers, and repealing Regulatory Decision No. 82/85 of 28 August 1985, which had been found to be unconstitutional by the courts;
   • - the trade union's participation in this working group was limited to an observer's role, as it was disproportionately represented compared to the other groups, despite the fact that only the casino employees benefit from tips; this prompted the trade union to make repeated protests. The objections addressed by the trade union to the Ministry of Employment and Social Security were to no avail. As a result of this working group, Regulatory Decision No. 24/89 of 15 March 1989 was published. This Decision was not preceded by any published notice calling for public discussion in the Labour and Employment Bulletin as required by Act No. 16/79 of 26 May 1979;
   • - the collective agreement signed between the Portuguese Association of Licenced Gambling Establishments and the trade union contains provisions on workers' freedoms, rights and guarantees, which are now also regulated by section 11 of the Regulatory Decision in question (No. 24/89). This runs counter to Article 168(1)(b) of the Constitution of the Republic, which stipulates that the Assembly of the Republic has sole competence to legislate on rights, freedoms and guarantees; the complainant claims that the Government has not obtained any legislative authorisation to legislate on these matters;
   • - moreover, Regulatory Decision No. 24/89 vests the General Gambling Inspectorate with competence to supervise the application of and compliance with the above-mentioned Decision and to exercise disciplinary authority in the event of infringements of the Decision. As a result, the General Gambling Inspectorate is now able, on the same footing as employers, to exercise disciplinary authority over the workers so that the latter now face double disciplinary accountability for the same alleged infringements.
3. 199. The complainant states further that this situation is unacceptable and violates international standards ratified by Portugal, since merely by publishing Regulatory Decision No. 24/89, the Gambling Inspectorate (not to be confused with the General Labour Inspectorate or the General Social Security Inspectorate), which is subordinate to the Ministry of Trade and Tourism, instituted disciplinary proceedings against members of the trade union. It alleged that the members had infringed the provisions of Decree No. 41 812 of 9 August 1958 and had violated the Special Social Security Fund, the responsibility for which, in any case, lies outside the Gambling Inspectorate's terms of reference.
4. 200. The trade union states further that the General Gambling Inspectorate considers that the workers affiliated to the trade union come under the legislation covering public servants. According to the complainant, this runs counter to national constitutional rights and international labour standards, thus exposing its affiliates, both in theory and in practice, to the possibility of a double disciplinary penalty. This illegal and authoritarian attitude has affected many of the trade union's members, who are now facing disciplinary proceedings for allegedly having refused to comply with rules laid down in the Regulatory Decision and refusing to supply the Gambling Inspectorate with a copy of their bank transfers, which also violates the right to banking secrecy.
5. 201. In a communication dated 23 June 1989, the Trade Union of Casino Croupiers sends additional information, in particular the opinions of various legal experts regarding the constitutionality of Regulatory Decision No. 24/89.

B. The Government's replies

1. 202. In its communication dated 13 September 1989, the Government refers to the allegations presented by the complainant, regarding which it states that in Portugal the right to operate gambling establishments is reserved for the State, which grants licences to private enterprises through administrative contracts of fixed duration. It is for the Government, as licenser, to ensure discipline and supervise the terms under which, taking the public interest into account, this activity should take place, both for the licensee enterprises and for the users and gaming room employees. The possibility of employees in gaming rooms accepting tips form players, and the rules for distributing such tips, are one of the aspects which are governed by administrative regulations, as is the case in most countries where gambling is practised (in Portugal the latter is defined in section 13 of Decree No. 41 812 of 9 August 1958).
2. 203. The Government states further that the Regulatory Decision in question, No. 24/89, is the last in a series of decisions which have been published over the years on this subject, in accordance with the provisions of section 13 mentioned above. The acceptance of tips is a right of workers making up the staff responsible for operating gaming rooms where such tips are given, irrespective of their trade union situation, i.e. of whether or not they are unionised or members of a trade union. The rules laid down in section 11 of Regulatory Decision No. 24/89 aim at limiting the right to receive such tips to persons performing an actual service, thus clarifying some of the less clear aspects of the above-mentioned Decision on this subject.
3. 204. The Government's communication also refers to section 12 of Regulatory Decision No. 24/89, which vests the General Gambling Inspectorate with competence to supervise compliance with the rules laid down in this Decision and to exercise disciplinary authority in the event of infringements. The Government states that, as may be clearly seen from section 12, it is not a matter of the General Gambling Inspectorate being vested with a new competence, since this Decision only makes rules under section 13, and subsections (1) and (2) thereof, of Decree No. 41 812 of 9 August 1958, which stipulate that it is the duty of the General Gambling Inspectorate to ensure compliance with the regulations. This interpretation may be deduced from section 3(1), clauses (b), (i) and (j) and section 13(1), clauses (g) and (h), of Legislative Decree No. 184/88 of 25 May. This being so, infringements are punishable under the terms of clause (b) of section 51 of Legislative Decree No. 48 912 of 18 March 1969 as regards licensee enterprises and under the terms of clause (a) and subsections (1) and (2) of section 12 of the above-mentioned Decree No. 41 812 as regards staff performing services in traditional gaming rooms.
4. 205. The Government states that, as may be concluded from the legislative provisions referred to in the previous paragraph, the General Gambling Inspectorate has sole competence to impose penalties for infringements of the rules laid down in Regulatory Decision No. 24/89, without there being, however, double disciplinary accountability for the same alleged infringements, as the complainant asserts. The disciplinary competence of the General Gambling Inspectorate and of the employing enterprise cover different infringements, so that the same offence cannot incur two types of disciplinary penalty. It must be stressed that administrative penalties should not be confused with labour-related penalties and that it is not possible to impose a double penalty.
5. 206. In line with the information given in the preceding paragraphs, Regulatory Decision No. 24/89 does not attempt to regulate conditions of work, since tips cannot be considered as wages. They are a simple gratuity on the part of users of gaming rooms. Neither does the competence of the General Gambling Inspectorate in disciplinary matters cover violations of workers' duties towards their employers. On this premise, the Decision in question did not have to be published for public discussion, since Act No. 16/79 of 26 May only lays down the obligation to publish regulations governing labour relations. For the same reasons, there was no requirement that the participation of the trade union representing the workers be on the same footing as that of the other members of the working group which was established to draw up the draft decision. None the less, the trade union participated in these meetings and played a very active role, and in many cases its claims were heeded.
6. 207. The Government states that it therefore does not understand the complainant's assertion that the Government violated freedom of association by issuing the Decision in question. Croupiers employed in casinos, like all workers, have the right under the legislation to set up their trade unions freely, without previous authorisation, and to carry out their activities without interference on the part of the public authorities. Act No. 16/79 explicitly recognises the right of trade unions to participate in labour legislation, and the Act respecting collective bargaining recognises their capacity to negotiate freely with employers and employers' organisations concerning collective labour relations without any interference on the part of the Government. All matters relating to conditions of work come within the scope of collective bargaining and the public authorities do not interfere with a view to amending the contents of freely concluded agreements.
7. 208. The Government's communication states further that the trade union representing the workers concerned has concluded collective agreements with the Portuguese Association of Licenced Gambling Establishments. The Government points out that it must be stressed that the tips which workers are allowed to accept under section 13 of Decree No. 43 044 must be shared and given "in accordance with the rules approved by the Minister". Since they do not constitute labour remuneration and are therefore not paid by the employer, they should not be regulated by collective agreement. This is so because freedom of association and the workers' concurrent right not to belong to trade unions make it unlawful for collective agreements to regulate the distribution of tips. The Government concludes by affirming that trade unions and employers' organisations have the right to be consulted previously before the rules governing distribution are issued and this was done in the present case.

C. The Committee's conclusions

1. 209. The Committee observes that the complainant's allegations concern: the disproportionate representation, compared to that of other participants, granted to the trade union in the working group established to draw up regulations on the distribution of tips paid to casino croupiers; the fact that such regulations were not preceded by public discussion as required by Act No. 16/79; the fact that section 11 of Regulatory Decision No. 24/89 laid down freedoms, rights and guarantees already acquired in the collective agreement signed between the trade union and the Portuguese Association of Licenced Gambling Establishments; the fact that the Government legislated on these acquired rights, freedoms and guarantees without the necessary legislative authorisation; and that Regulatory Decision No. 24/89 (section 12) vests the General Gambling Inspectorate with supervisory competence, which involves double disciplinary accountability for the workers.
2. 210. The Committee notes the information supplied by the Government to the effect that Regulatory Decision No. 24/89 does not aim to govern conditions of work, since the tips paid by users of gaming rooms cannot be considered to be wages, neither does the competence of the General Gambling Inspectorate cover violations of workers' duties towards their employers. Nevertheless, the Committee considers that the tips paid by users to casino croupiers and the regulation thereof directly concern the recipients of such tips, because while tips are not, strictly speaking, considered to be a part of wages, it cannot be denied that they are an essential part of the nature of the activity concerned. Therefore, in the Committee's view, the main parties involved in the regulation of the distribution of tips - namely, casino croupiers - should have been represented and consulted in a proportion at least equal to that of the other members of the working group which drafted this regulation. The Committee urges the Government in future to invite the organisations directly concerned, in this case the Trade Union of Casino Croupiers, to participate on at least an equal basis.
3. 211. As regards the allegations concerning the double disciplinary competence allegedly instituted by Regulatory Decision No. 24/89 upon its publication without previous public discussion, and section 11 of the same Decision which, according to the complainant, runs counter to constitutional provisions by legislating on matters relating to rights, freedoms and guarantees without the necessary legislative authorisation, the Committee notes that these allegations refer to administrative and legislative matters of an internal nature, which in this case do not appear to have a direct effect on the freedom of association of the complainant. The Committee therefore considers that these allegations lie outside its competence.
4. 212. As regards the allegation that the General Gambling Inspectorate had instituted disciplinary proceedings against several members of the trade union for alleged violations of the Special Social Security Fund, the Committee recalls that it is not competent to deal with social security legislation. (In this respect, see 230th Report of the Committee, Case No. 1027 (Paraguay), para. 53.)

The Committee's recommendations

1. 213. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • - As regards the allegation concerning the disproportionate representation of the trade union in the meetings leading to the publication of Regulatory Decision No. 24/89, the Committee urges the Government in future to invite the organisations concerned, in particular the Trade Union of Casino Croupiers, to attend in a proportion at least equal to that of the other interested bodies.