Rapport définitif - Rapport No. 248, Mars 1987

Cas no 1365 (Portugal) - Date de la plainte: 03-MARS -86 - Clos

1. 173. The complaint of the National Federation of Public Employees' Trade Unions is contained in a communication of 3 March 1986; that of the Public Administration Trade Union Front in a communication of 14 March 1986. The World Federation of Organisations of the Teaching Profession associated itself with the FCSFP complaint in a communication of 27 March 1986. The Government replied in a letter dated 2 October 1986.
2. 174. Portugal has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No.87), the Right to Organise and Collective Bargaining Convention, 1949 (No.98) and the Labour Relations (Public Service) Convention, 1978 (No.151)

A. The complainants' allegations

1. 175. The complainants allege the infringement of trade union rights in Portugal in connection with the bargaining procedure for the review of public service wages for the year 1986.
2. 176. The National Federation of Public Employees' Trade Unions, which is affiliated to the General Confederation of Portuguese Workers (CGTP-IN), and which together with the National Federation of Teachers, Local Public Administration Employees and Public Ministry Magistrates, comprises the National Federation of Public Employees' Trade Unions and claims to represent 70 per cent of the employees in this sector, presents a complaint concerning the infringement of Convention No. 151.
3. 177. The Public Administration Trade Union Front (FESAP), composed of the Federation of State Workers, which is affiliated with the General Confederation of Labour (UGT), together other independent trade unions, claims to represent 250,000 employees in public administration and to have been the only representative trade union organisation to have signed two wage agreements on behalf of public employees in 1984 and 1985. This organisation also alleges the infringement of Convention No. 151.
4. 178. The facts, as described by the complainants, are as follows: according to the national federation affiliated with the CGTP-IN, the Trade Union Bargaining Committee (CNS) requested the Government on 15 October 1985 to increase wages for 1986. Following the legislative elections which brought about a change in Government, the CNS resubmitted its demands to the new Government on 4 November 1985. The negotiations, however, did not get under way until three months later, following a number of trade union demonstrations. On 4 December, 70 trade union leaders appeared at the Prime Minister's residence and on 18 December, 300 trade union leaders and activists called on the Secretary of State for the Budget, who received them and agreed to open negotiations. The Government and the CNS held the first of three bargaining meetings on 15 January 1986.
5. 179. In the knowledge that, according to the General Enabling Act on the Budget, public expenditures are not supposed to exceed the corresponding budgetary credits, and that the scheduling of wage and other negotiations must be subordinate to the preparation of the budget and its parliamentary review, and in the knowledge that the Parliament would review the proposed budget in the first months of 1986, the trade union front affiliated with the UGT presented a draft bargaining agreement on 18 and 27 December 1985. The Government failed to reply to this request and did not meet with the trade union front until 16 January 1986.
6. 180. The national federation affiliated with the CGTP-IN alleges that the trade unions requested an increase of 26.6 per cent, as well as a daily allowance of 1,880 escudos and a meal allowance of 280 escudos. The national federation and the trade union front agree that the Government proposed an increase of 15 per cent, with a daily allowance of 1,710 escudos and a meal allowance of 210 escudos. The trade union front affiliated with the UGT reports that it signed a draft agreement with the Government to the effect that both parties wished to conclude negotiations in the month of January, and that the Government agreed to furnish all necessary information during the current month.
7. 181. The national federation states that at the second meeting, the Government and the CNS modified their proposals, with the Government offering an increase of 16 per cent and the CNS settling for one of 23 per cent. However, at the third meeting, the government representative requested the CNS to accept its offer of 16 per cent, failing which negotiations would be suspended immediately. The CNS refused to accept this counter-proposal, and although it declared that it was still willing to pursue negotiations and moderate its demands, the Government nevertheless broke off the negotiations unilaterally. On 27 January 1986, the CNS requested the opening of further negotiations, in accordance with the law; the Government, however, without taking this request into account or replying in any way whatsoever, decided on 28 January 1986 to increase the public service wage bill by 16.4 per cent, which was more than the last proposals made during the negotiations.
8. 182. The national federation further reports that the Government simultaneously reached an agreement with the State Technical Supervisors' Trade Union, an organisation similar to the national federation, but not merely as representative, as it encompasses only 2 per cent of the employees covered by the agreement.
9. 183. For its part, the trade union front reports that the Government, represented by the Secretary of State for the Budget, delivered a genuine ultimatum at the meetings held on 20, 21 and 22 January: that the front accept an increase of 15.8 or 16 per cent, failing which negotiations would be suspended. The trade union front refused to accept the Secretary of State's proposal but indicated its willingness to pursue negotiations, pointing to the fact that it had shown during the three previous meetings its interest in dialogue and its steadfast wish for a rapprochement. It stated that its proposal of 21.5 per cent was not final, that the 16 per cent increase proposed by the Secretary of State was not acceptable, and that there was room for negotiation. Furthermore, the trade union front adds that the Government's reply did not furnish all required information, although it fails to specify which information was not forthcoming. According to the trade union front, the suspension of negotiations was premeditated since, in December 1985, the Government had avoided negotiations on the pretext that it had to submit the supplementary budget for 1985 to Parliament, although this budget had no bearing on wage revisions for 1986. The Government had agreed to negotiate during the month of January, with a view to reaching an agreement by the end of January, since the review of the budget by Parliament was scheduled for February. However, according to the trade union front, the Government failed to keep its word. It sought to rush the negotiations by packing them into four days, i.e. 16, 20, 21 and 22 January; the first meeting, in fact, was limited to a presentation of the Government's proposals and the signing of a draft agreement; the last meeting served only to allow the Government to state that it had no intention of making any concessions or going beyond its position.
10. 184. Given the Government's suspension of negotiations, on 27 January the trade union front requested the opening of further negotiations as provided by law. Nevertheless, the Secretary of State for the Budget, in a letter of 30 January, a copy of which was attached by the complainant, refused to open further negotiations on the pretext that he had to submit the budget to Parliament on 3 February 1986, that none but his own proposal was compatible with the policy aimed at stabilising inflation at 14 per cent in 1986, and that his proposal and the counter-proposal (16 and 21.5 per cent, respectively) were too far apart to allow for a resolution of the dispute in time for the budget debate. The trade union front also confirms that it later learned through the media of the Council of Minister's decision to raise salaries by 16.5 per cent for 1986, and of the agreement with the State Supervisors' Trade Union, which is a minority organisation representing less than half of this very small category.
11. 185. According to the trade union front, the Government's bad faith is evident in its decision to grant the State Technical Managers' Trade Union, on behalf of all public employees, an increase of 16.5 per cent, while the Secretary of State had only proposed a maximum 15.8 per cent to the trade union front, which represents all occupational categories in the public service. Furthermore, the agreement with the Managers' Trade Union is dated 28 January, which shows that the Government, after breaking off negotiations with the trade union front on the pretext that it no longer had time to negotiate prior to presenting the 1986 budget to Parliament, did, in fact, find time to pursue negotiations with the Managers' Trade Union. Obviously, by signing this agreement with a minority and non-representative organisation, the Government was seeking to establish working conditions for 1986 unilaterally before the second round of presidential elections, which was scheduled for 16 February, in a purely political move. As of the date of its complaint, in other words, 14 March 1986, the trade union federation reports that the Government had not yet opened the debate on the budget, during the course of which modifications could be made; therefore, the trade union front concludes that the Government's sudden suspension of negotiations well before the end of January was not motivated by the urgency of Parliament's examination of the budget, but by purely electoral considerations. The Government's refusal to utilise the procedure for further negotiations is unjustified and deplorable. Furthermore, the provisions of Portuguese legislation (Legislative Decree No. 45-A/84, section 8, paragraph 2) are not consistent with the spirit or the letter of Convention No. 151, and in particular with Article 8.

B. The Government's reply

1. 186. In its reply of 2 October 1986, the Government notes that both complaints concern the bargaining procedure in connection with the review of public service wages for 1986 as regards the principles of good faith and usual confidence between the parties.
2. 187. Specifically, the Government is alleged to have infringed the provisions of Article 8 of Convention No. 151 concerning the settlement of differences regarding the determination of employment conditions, by having delayed the opening of negotiations and then, only after having been subjected to pressure. It is alleged that the number and frequency of meetings that were held made it impossible to give due consideration to the proposals advanced by the parties, to the detriment of the bargaining process. It is further alleged that the Government decided unilaterally to terminate negotiations despite the large gap between the parties' proposals regarding the increase in question.
3. 188. As regards the opening of the procedure for settling these differences, the National Federation of Public Employees' Trade Union alleges that in spite of its expressed intention to request further negotiations during the course of the last meeting, the Government ignored this request and failed to reply.
4. 189. For its part, the trade union front states that the Government refused to initiate the procedure for further negotiations and that this refusal was unjustified and should be condemned. The front also claims that the provisions of Portuguese legislation, namely Legislative Decree No. 45-A/84, section 8, paragraph 2, do not conform with the spirit or the letter of Convention No. 151.
5. 190. As regards the general wage bargaining procedure in question, the Government replies that it has always shown an interest in bargaining with the trade unions on questions concerning the review of public service wages, and that this interest was translated into action as soon as it was possible to hold meetings. As it happened, this was not possible until mid-January, owing to the fact that the Government, which had taken office in November, had been busy preparing the 1985 supplementary budget and discussing it with Parliament. The trade unions were informed of this situation; they knew why it had not been possible to hold the meetings. It must also be pointed out that the meetings were called and scheduled on the very day on which the supplementary budget was put to a final vote, and that the first meeting was held on the first working day following the budget's approval. Thus, there are no grounds to support the national federation's allegation that negotiations only commenced after pressure was brought to bear by the trade unions.
6. 191. Throughout the meetings, the Government always adopted a frank and clear attitude, as evidenced by the records of the meetings which the Government encloses. In fact, the Government's representative clearly set forth the principles that should guide the negotiations in the light of the Government's objectives and the constraints on increases which had already been included in the new budget that the State would submit to the National Assembly in early February. The Government clearly defined the limits of negotiation in the meetings, in accordance with the provisions of section 4 of Legislative Decree No. 45-A/84, which stipulates that both parties must be guided by the "principle of safeguarding the public interest". In the case at hand, this implied that the parties should respect the sprit of the budgetary and fiscal policy outlined at the outset of the negotiations by the Secretary of State for the Budget, and presented in the budgetary bill to the National Assembly. Thus, it is difficult to understand why the national federation alleges that the Government imposed an ultimatum.
7. 192. According to the Government, both complainant organisations were aware from the outset of the urgency of taking a decision within the above-mentioned limits; in fact, they insisted on presenting counter-proposals so greatly at odds with those of the Government that there were no prospects for an agreement, given the need to submit the budgetary proposals for 1986 to the National Assembly no later than had been scheduled.
8. 193. Moreover, according to the Government, the fact that an agreement was reached with the State Technical Supervisors' Trade Union - one of the trade union organisations participating in the negotiations - attests to the Government's good faith and willingness to negotiate. It was possible, in fact, to reach an agreement expeditiously with the above-mentioned trade union, precisely because, unlike the complainant organisations, this trade union proved open to the proposals within the limits and parameters established by the Government and presented along exactly the same lines to all the trade union organisations involved.
9. 194. In reply to the allegations concerning the request for further negotiations, the Government reports that it replied as required by the letter of the law that governs the right of public employees to negotiation, as substantiated by letters attached by the Government, which explain the reasons that led it to reject the grounds invoked for reopening negotiations. The Government does not understand why the national federation alleges that it did not reply to the request for further negotiations, nor why the national federation alleges that the Government rejected the request for further negotiations. In fact, the Government was of the opinion that it was not possible to accept the reasons invoked for reopening negotiations since, as explained above, the Government considered that it would not be possible to resume negotiations owing to the short time available to complete work on the state budget for 1986. In any event, according to the Government, it is not within the competence of trade union organisations to interefere or even comment on the Government's decisions regarding the manner in which the State's budget is presented to the National Assembly; their only legitimate recourse is to demand that the conditions governing the negotiations be clearly set forth at once, and this, in fact, was done.
10. 195. The trade union front's allegations that certain provisions of Portuguese legislation do not conform with the spirit or the letter of Convention No. 151, have no bearing on the negotiations in question. In fact, the Government considers that it has abided by the legislation in force as of the date on which the negotiations began. The Legislative Decree in question, which was open to public debate when it was presented as a bill, was prepared in accordance with the provisions of its preamble and with the intention of respecting the international obligations undertaken by Portugal in ratifying Convention No. 151. This was an overriding concern in the preparation of the section in question. The proposed text was presented to the Committee of Experts on the Application of Conventions and Recommendations within the framework of the reports presented on the application of this Convention; the Committee did not formulate any observations or direct requests that would support the alleged incompatibility. Furthermore, the complainant organisation itself never reported the slightest legal incompatibility when copies of this report were forwarded to it.
11. 196. In conclusion and in light of the foregoing, the Government considers that the complaints should be rejected as the allegations are groundless.

C. The Committee's conclusions

1. 197. The Committee observes that the complaints concern a denunciation of Legislative Decree No. 45-A/84 of 3 February 1984 concerning the right of negotiation of public employees, in the sense that it fails to establish a procedure for the resolution of disputes in the public service. In particular, they concern the Government's refusal to initiate further negotiations with the complainant organisations, following the failure of wage increase negotiations, and the Government's alleged unilateral decision to grant a wage increase greater than that which it had proposed during the negotiation.
2. 198. The Committee observes that the national federation affiliated with the General Confederation of Portuguese Workers (CGTP-IN) had already submitted complaints concerning collective bargaining in the public service in 1981 and in 1985 (Case No. 1042, examined in the 214th Report in March 1982, and Case No. 1315, examined in the 239th Report in March 1985). The first of these complaints was presented before the adoption of Legislative Decree No. 45-A/84; the second, after its adoption. At the time of the first complaint, the Government had already ratified Convention No. 151, but had not yet adopted Decree No. 45-A/84 of 3 February 1984 concerning the right of negotiation of public employees. In its conclusions, the Committee on Freedom of Association had requested the Government to adopt legislation that would grant public employees the guarantees provided for by Convention No. 151 in such a way as to secure the confidence of the parties concerned. (214th Report, para. 331.) In response to the second complaint, the Committee had noted that the Committee of Experts on the Application of Conventions and Recommendations had examined Legislative Decree No. 45-A/84 and found it to comply with the requirements of Convention No. 151. The Committee endorsed this opinion, considering that the procedure chosen in Portuguese law to resolve disputes, namely further negotiations, complied with the terms of the Convention, which were correctly applied by the Government in the case in question, and decided at that time that the case did not call for further examination. (239th Report, paras. 74-81.)
3. 199. In the present case, the two largest and most representative organisations of public employees presented complaints alleging that the Government had infringed the Legislative Decree by refusing to open further negotiations. Section 8 of this Legislative Decree, which concerns the resolution of disputes, provides in paragraph 1 that "the resolution of disputes that arise during the bargaining procedure may be undertaken at the request of the trade union organisations by further negotiations"; the second paragraph of the same section provides that the opening of further negotiations requires the approval of the Government and must take place within 20 days and aim at securing an agreement. The third paragraph provides that the consensus reached in the further negotiations will assume the character of a recommendation.
4. 200. The Government recalls that the bill of Legislative Decree No. 45-A/84 was prepared with the intention of complying with Convention No. 151, that it was publicly debated, that it was communicated to the Committee of Experts who formulated no observations or direct requests, and that the trade union front - the second complainant organisation in this case - never alleged the slightest legal incompatibility when copies of the reports on the application of Convention No. 151 were forwarded to it.
5. 201. In fact, the Committee observes that, as the trade union front itself indicates at the outset of its complaints, the Government succeeded twice before, in 1984 and in 1985, in signing wage agreements for public employees with this representative organisation affiliated with the UGT.
6. 202. The Committee observes, nevertheless, that in the present case the Government failed to reopen negotiations with the most representative organisations, but that it managed to reach an agreement with an organisation which is considerably less representative.
7. 203. In the Committee's opinion, although the procedure chosen in Portuguese law to resolve disputes, namely further negotiations, complies with the terms of the Convention, the Government and trade union organisations, as parties to the negotiation, must nevertheless maintain an attitude of good faith in all negotiations. In the case in question, the Committee notes with regret that the Government did not resume negotiations with the complainant organisations which are the most representative.

The Committee's recommendations

1. 204. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation: The Committee requests the Government in the future to open further negotiations at the request of the most representative trade union organisations with a view to reaching an agreement.