Observation (CEACR) - adoptée 2010, publiée 100ème session CIT (2011)

Convention (n° 98) sur le droit d'organisation et de négociation collective, 1949 - Portugal (Ratification: 1964)

The Committee takes note of the comments from the General Workers’ Union (UGT) which were attached to the Government’s report and which address compulsory arbitration and trade union representativeness. It also notes the comments of 24 August 2010 by the International Trade Union Confederation (ITUC) alleging anti-union practices and restrictions on bargaining rights in the public sector, and those of the Confederation of Portuguese Tourism (CTP) received on 22 September 2010. The Committee asks the Government to send its observations thereon.

Article 4 of the Convention. Compulsory arbitration. In its previous observations the Committee referred to the Labour Code, section 567, which provides that “in disputes arising from the conclusion or revision of a collective labour contract, recourse to arbitration may be compulsory where, after protracted and fruitless negotiations and unsuccessful conciliation and mediation, the parties fail to agree within two months of such procedures to refer the dispute to voluntary arbitration”. The Committee also noted that, according to the Government, section 1(b) of Amendment Act No. 9/2006 provides that compulsory arbitration shall be allowed “following a majority vote by the representatives of the workers and the employers in the Standing Committee for Social Partnership” (CPCS) (the Committee took the view that this paragraph should be deleted as in many cases it would allow the decision to impose compulsory arbitration in a dispute to be taken by workers’ and employers’ organizations that are not party to the dispute).

The Committee notes the adoption of Act No. 7/2009 of 12 February 2009 approving the revision of the Labour Code, and the adoption of Legislative Decree No. 259/2009 of 25 September 2009, which regulates the various instances of compulsory arbitration in a manner generally consistent with the principle of free and voluntary bargaining laid down in the Convention. The Committee notes with satisfaction that with this reform, where protracted and fruitless negotiations have ended in a stalemate deemed impossible to unblock, recourse to compulsory arbitration may be held only for the negotiation of a first collective agreement, in accordance with the principles of the Convention.

However, the Committee notes that section 508(1)(b) of the Labour Code as revised, provides for compulsory arbitration after a majority vote by the representatives of the workers and employers on the CPCS. Consequently, the Committee requests the Government to look into the possibility of amending section 508(1)(b) so as to preclude the decision to impose compulsory arbitration from being taken by workers’ and employers’ organizations that are not parties to the dispute.

Representativeness of organizations. The Committee noted in previous comments the conclusions of the Committee on Freedom of Association in Case No. 2334, which mentioned that the legislation: (1) cites by name the organizations that are to form part of the Economic and Social Council (CES) and the CPCS, which means that some organizations that deem themselves representative are left out; and (2) does not lay down objective criteria for determining the representativeness of workers’ and employers’ organizations. The Committee had requested the Government, in consultation with the most representative organizations of workers and employers, to work out and lay down objective, precise and predetermined criteria to evaluate the representativeness and independence of employers’ and workers’ organizations, and to amend the legislation (Act No. 108/91 of the CES, section 9, concerning the CPCS) by deleting the names of the workers’ organizations that are to be members of the CES and the CPCS, referring instead to the most representative organizations. The Committee notes the information sent by the Government to the effect that the President of the CES has taken the initiative of launching a general discussion on the composition of the CES with the cooperation of members. It also notes the Government’s statement that it is impossible to forecast the outcome of these discussions or the proposals and recommendations the President may make. The Committee hopes that the Standing Committee on Social Partnership will examine these matters in the near future and that the outcome of its discussions will lead to an agreement to amend the legislation along the lines the Committee has been suggesting for years. The Committee asks the Government to provide information on any developments in this regard.