Demande directe (CEACR) - adoptée 2021, publiée 110ème session CIT (2022)

Convention (n° 156) sur les travailleurs ayant des responsabilités familiales, 1981 - Portugal (Ratification: 1985)

The Committee notes the observations of the General Confederation of Portuguese Workers - National Trade Unions (CGTP-IN) communicated with the Government’s report.

Measures addressing family responsibilities during the COVID-19 pandemic. The Committee welcomes the Government’s indication, in its report, that, due to the COVID-19 pandemic, several temporary measures were implemented, including in order to: (1) increase family allowances and strengthen social protection for workers with family responsibilities, by Decree-Law No. 37/2020 of 15 July 2020; and (2) establish a specific paid leave, allowing for working parents to go home to take care of their children under 12, when they had to stay at home as a result of the closing of schools or for medical reasons (Decree-Law No. 10-A/2020 of 13 March 2020). It notes in particular that section 29 of Decree-Law No. 10-A/2020 provides for the possibility of working remotely from home in all situations where it is possible, providing that such decision could be unilaterally taken by the employer or requested by the worker, without the need for an agreement between the parties. In that regard, the Committee notes that, in its observations, the CGTP-IN highlights that the COVID-19 pandemic has shown that flexible working arrangements can make it more difficult to reconcile work and family responsibilities. The Committee asks the Government to provide information on the application of the specific temporary measures adopted in the context of the COVID-19 pandemic and any effects that they may have had on workers with family responsibilities.

Legislative developments. The Committee notes with interest the adoption of the Statute of the Informal Caregiver (ECI) by Law No. 100/2019 of 6 September 2019, which establishes a formal statute for informal carers. It notes that the legislation differentiates between: (1) principal informal carer, who is a family member living in the same household as the person being cared for, providing care on a permanent basis without remuneration; and (2) non-principal informal carer, who is a family member caring on a regular but non-permanent basis, with or without remuneration. The Committee notes, more particularly, that Law No. 100/2019 provides for financial support and measures to support their integration into the labour market for principal informal carers, as well as for measures to reconcile care with professional life for non-principal informal carers. The law also describes other supporting measures the informal carers are entitled to, such as: capacity-building and training in the development of caring skills; statutory fiscal benefits and voluntary social insurance; psychosocial support and rest periods. In that regard, the Committee notes that Portugal has one of the highest rate of care provided by informal carers, with 30.6 per cent of informal carers providing care for more than 20 hours weekly (Long-term Care Report, 2021, Social Protection Committee and European Commission, p. 351) and the greatest gender imbalance with women making up 70.1 per cent per cent of informal carers aged 50 and over (Health at a Glance 2019: OECD indicators, figure 11.21). The Committee asks the Government to provide information on the implementation of Law No. 100/2019 on the Statute of the Informal Caregiver, in particular on any implementing regulations adopted, as well as on any assessment made of the impact of this new legislation on the conciliation of work and family responsibilities, both for principal and non-principal informal carers. The Committee asks the Government to provide statistical information, disaggregated by sex, on the number of persons who benefited from the coverage of these support measures, while specifying whether such support comprised professional training, career counselling and support for the integration into the labour market.

Article 3 of the Convention. National policy. The Committee previously noted that the National Plan for Equality, Citizenship and Non-Discrimination, which ended in 2017, included measures and actions aimed at promoting gender equality and better conciliation between work and family responsibilities. It requested the Government to provide information on any new national policy adopted as a follow-up. The Committee notes the Government’s statement that the National Strategy for Equality and Non-Discrimination 2018-2030 (ENIND), and more particularly its Action Plan for Equality between Women and Men (PAIMH), 2018-2021, provide for specific measures to ensure equality of opportunity and treatment of workers with family responsibilities and promote better conciliation between work and family responsibilities. The Committee asks the Government to provide information on the concrete measures implemented, in particular in the framework of the National Strategy for Equality and Non-Discrimination 2018-2030 and its accompanying action plan for equality between women and men, in order to ensure equality of opportunity and treatment of workers with family responsibilities and assist men and women workers in better conciliating work and family responsibilities.

Protection from discrimination on the ground of family responsibilities. The Committee previously noted that, despite the prohibition of discrimination on the ground of family situation and the obligation for employers to ensure working conditions that facilitate conciliation between work and family responsibilities (sections 24 and 127(3) of the Labour Code), discrimination against men and women as a result of their family responsibilities persisted in practice. The Committee notes with interest the adoption of Law No. 90/2019 of 4 September 2019, which introduces a new Article 35-A in the Labour Code, prohibiting any form or discrimination based on the exercise by workers of their maternity and paternity rights, in particular regarding the attribution of attendance and productivity bonuses or career progression. The Committee however notes that, in its observations, the CGTP-IN again expresses concern about women of childbearing age and/or with children who continue to be particularly discriminated against regarding access to employment and career advancement and are subjected to strong pressure and even persecution to renounce to their rights. During the recruitment process, employers often ask women if they intend to marry or have children, sometimes requiring a written commitment not to become pregnant during a certain period and frequently, employment contracts of women who informed their employer of their pregnancy were not renewed or such workers were dismissed. The CGTP-IN adds that men who intend to exercise parental rights are also frequently discriminated against and subjected to strong pressure to renounce to their rights, which is reinforced by the persistence of the stigma in the society according to which childcare is a task for women. The Committee notes with concern this information. The Committee asks the Government to make every possible effort to ensure that men and women workers with family responsibilities are adequately protected against discrimination in practice. It asks the Government to provide information on the proactive measures taken to ensure the effective implementation and enforcement of the relevant legislative provisions, including sections 24, 35-A and 127(3) of the Labour Code. The Committee asks the Government to provide information on the number and nature of cases of discrimination in employment and occupation based on family responsibilities dealt with by the labour inspectors, the courts, or any other competent authorities, as well as the sanctions imposed and remedies granted.

Article 4. Leave entitlements. Paternity leave. The Committee previously noted that, pursuant to the revision of the Labour Code by Law No. 120/2015, several measures were introduced to better assist workers to reconcile their work and family responsibilities. The Committee welcomes the adoption of Law No. 90/2019 of 4 September 2019, which introduces new amendments to the Labour Code, including: (1) the extension of the duration of the compulsory part of paternity leave from 15 to 20 days, while the non-compulsory part of the leave is fixed at 5 days; and (2) the payment of social security benefits for paternity leave (both compulsory and non-compulsory part) on the basis of 100 per cent of the average salary of the father. It also welcomes the Government’s indication that several measures were implemented, such as the family allowance for children and young people and the prenatal family allowance. It notes that, in its 2019 annual report, the Commission for Equality in Labour and Employment (CITE) highlights that 72.7 per cent of working fathers benefited from the compulsory period of their paternity leave (compared to 65.8 per cent in 2017), but only 39.3 per cent make use of the possibility for both parents to take the parental leave simultaneously between the 120th and 150th day of leave (compared to 33 per cent in 2017). The Committee observes that the number of fathers who make use of paternity leave and parental leave continues to grow. It notes however that, while paternity leave is mandatory, still 27.3 per cent of fathers did not access this leave entitlement in 2019. In that regard, it notes that, in its observations, the CGTP-IN indicates that, as a result of women being socially considered as the main responsible for the care of children and other family members, men are still discriminated against in the exercise of parenthood rights as it is not socially accepted that men can exercise such rights. The Committee further notes that, in its 2021 Country Report on Gender Equality in Portugal, the European Commission highlights that it is a known fact that women are still the main ones responsible for caring roles, and that working fathers do not take full advantage of the several measures established by the Labour Code and intended to guarantee the exercise of “parenthood” rights and to promote the reconciliation of professional and family life on a regular basis (for instance, time-off from work to attend to family needs). Since care responsibilities are still considered predominantly as female tasks, and since most women in Portugal work full-time, the burden on women in this respect is still much higher than the burden on men, with inevitable consequences in women’s careers and remuneration. The European Commission further highlights that recent data concerning the impact of the specific measures implemented in the context of the COVID-19 pandemic also give ground for the conclusion that women are still the main carers within the family, as a public survey showed that almost 90 per cent of these periods of specific leave had been required by the mothers, while the fathers kept on working (pp. 31 and 48). In light of the persistent gender stereotypes concerning the sharing of family responsibilities, the Committee asks the Government to provide information on any proactive steps taken to encourage more men to make use of family-related leave and flexible working-time arrangements, such as awareness-raising activities promoting the exercise of shared parental responsibilities and encouraging men’s engagement in parenting and caring for children and other immediate family members, as well as on the impact of such measures. It further asks the Government to continue to provide statistical data, disaggregated by sex, on the extent to which men and women workers make use of family-related leave entitlements, both compulsory and non-compulsory and flexible working time arrangements, both in the public and private sectors.

Article 5. Community planning and services. The Committee welcomes the Government’s indication that the third generation of the Programme for the Improvement of the Social Equipment (PARES 3.0) was adopted by Ordinance No. 201-A/2020 of 1 September 2019, in order to support the development, consolidation and rehabilitation of equipment and infrastructures for children and young persons. It however observes that the Government does not provide any information on the number and nature of community childcare and family services and facilities available for workers with family responsibilities. The Committee asks the Government to continue to provide information on the measures taken to ensure adequate, affordable and accessible childcare services and facilities and other services and facilities which aim to assist men and women workers to reconcile work and family responsibilities. It again asks the Government to provide updated information on: (i) the number and nature of community childcare and family services and facilities, such as home support services, residential homes, etc., the existence of which assist workers to reconcile their work and family responsibilities; and (ii) the number of workers who benefit from the existence of childcare services and facilities and other community services and facilities.

Article 7. Vocational guidance and training. The Committee previously noted that several provisions of the Labour Code provide for priority access to training for workers with family responsibilities and for their right to resume their previous occupation after any type of leave (sections 30(3), 61 and 65(5)). Since no information was provided by the Government, the Committee once again asks the Government to provide information on the vocational guidance and training measures adopted to ensure that workers with family responsibilities can become and remain integrated into the labour force, as well as re-enter it after an absence due to family responsibilities. It also asks the Government to provide statistical information, disaggregated by sex, on the number of workers with family responsibilities who avail themselves of this priority access to training and participated in vocational guidance and training programmes.

Article 8. Protection against dismissal. The Committee recalls that dismissal during pregnancy and maternity leave, as well as during parental leave, is unlawful (section 63(2) of the Labour Code). It previously noted that, despite several amendments introduced in the national legislation to strengthen the protection against dismissal as a result of family responsibilities, in particular by increasing the sanctions imposed on employers, the number of complaints concerning dismissal or non-renewal of employment contract of pregnant or breastfeeding workers, or workers who had recently given birth was increasing. It requested the Government to provide information on the measures taken to ensure an effective protection in practice of men and women workers against dismissal on the ground of family responsibilities. The Committee notes that the Government did not provide any information in that regard. Recalling that pursuant to section 63(1) of the Labour Code, any dismissal of a pregnant or breastfeeding worker, worker who has recently given birth or worker on parental leave needs to be submitted first to the prior opinion of the CITE, the Committee notes that, in its 2019 annual report, the CITE indicates that it opposed dismissal in 57 per cent of those cases, which represented a 10 per cent increase compared to 2018. The Committee further notes that, in its 2021 Country Report on Gender Equality in Portugal, the European Commission highlights that, despite the legal prohibition of dismissal during pregnancy and maternity leave, in practice, the protection of maternity, especially during the pregnancy and immediately after giving birth, still needs to be strengthened, since pregnant women and young mothers face more difficulties in being hired and are more easily dismissed (p. 48). The Committee notes with concern this information. The Committee once again asks the Government to provide information on the proactive steps taken to enforce section 63(2) of the Labour Code, thereby ensuring effective protection of men and women workers against dismissal on the ground of family responsibilities. It further asks the Government to provide information on the number of cases of unlawful dismissal of pregnant or breastfeeding workers or those who have recently given birth, or of employees on parental leave dealt with by the labour inspectorate, the courts or any other competent authorities, the sanctions imposed and remedies granted.

Articles 6 and 11. Awareness-raising measures and cooperation with employers’ and workers’ organizations. The Committee previously noted the awareness-raising activities undertaken on non-discrimination and reconciliation of work and family responsibilities, including by tripartite institutions such as the CITE, for the public in general and the social partners. The Committee notes the Government’s general indication that dissemination of information and awareness-raising on protection of maternity and paternity rights and reconciliation of work and family responsibilities are continued by the CITE, in particular in the framework of the Parents@Work project, funded by the European Union. The Committee asks the Government to provide information on the actions implemented, in collaboration with employers’ and workers’ organizations in order to: (i) address gender stereotypes regarding the role of men and women with respect to family responsibilities, and (ii) promote a broader understanding in society, including among employers, of the principle of equality of opportunity and treatment for men and women workers and the rights and needs of workers with family responsibilities.

Enforcement. Referring to its previous comments, the Committee notes that the statistical data communicated by the Government regarding the activities of the labour inspectorate does not contain information regarding the number of violations detected concerning parental rights. It however notes that, according to its 2019 annual report, the CITE received 11 complaints concerning maternity rights, one complaint concerning paternity rights, and 12 complaints concerning reconciliation of work and family responsibilities and flexible working arrangements. The Government adds that, since 2019, 11 judicial decisions were handed down on issues covered by the Convention. The Committee asks the Government to continue to provide information on the number, nature and outcome of any cases or complaints concerning violation of parental rights and discrimination based on family responsibilities detected or dealt with by the Working Conditions Authority, the CITE, the courts, or any other competent authorities.

General Observation. Regarding the above issues and more generally, the Committee would like to draw the Government’s attention to its general observation on workers with family responsibilities, adopted on 2019. In such observation, the Committee recalls the ILO Centenary Declaration for the Future of Work’s aim to achieve gender equality at work through a transformative agenda and stresses the importance of the Convention in achieving this goal. The Committee calls for member States, and employers’ and workers’ organizations, to strengthen efforts towards: (i) making non-discrimination of workers with family responsibilities and the adoption of measures to facilitate the reconciliation of work and family responsibilities explicit aims of their national policy; (ii) regularly monitoring and assessing the results achieved within the framework of the national policy towards achieving the aims of the Convention with a view to adjusting the measures adopted or envisaged; (iii) launching regular public information campaigns to promote the sharing of family responsibilities and remove misconceptions around care roles; (iv) ensuring that workers with family responsibilities have effective equal opportunities and rights to enter, re-enter and remain integrated in the labour market; (v) expanding and increasing access of all workers to voluntary and protected measures of working arrangements and leave that facilitate reconciliation of work–family life; (vi) expanding measures that support the reconciliation of work and family responsibilities within social protection systems; (vii) establishing and expanding adequate quality childcare and family services at community level; (viii) promoting social dialogue, collective bargaining and other measures to strengthen, facilitate and encourage the implementation of the principles of the Convention; and (ix) enhancing the capacity of enforcement authorities, including labour inspectors, tribunals, courts, and other competent bodies, to identify, prevent and remedy cases of discrimination in employment and occupation related to family responsibilities. The Committee asks the government to provide information on any measures taken or foreseen to apply the points referred to above.