Solicitud directa (CEACR) - Adopción: 2019, Publicación: 109ª reunión CIT (2021)

Convenio sobre los trabajadores con responsabilidades familiares, 1981 (núm. 156) - Portugal (Ratificación : 1985)

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Observación

1999

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The Committee notes the observations of the Confederation of Portuguese Industry (CIP) and of the General Workers’ Union (UGT), both received on 28 August 2017, as well as of the General Confederation of Portuguese Workers – National Trade Unions (CGTP-IN), received on 1 September 2017, all forwarded by the Government.

Legislative developments. The Committee notes with interest that section 7 of Law No. 62/2017, of 1 August 2017, now imposes upon companies the duty to elaborate annual equality plans, intended to achieve equal opportunities and equal treatment of women and men and to promote the reconciliation of work and family life within the company. The Committee asks the Government to provide information on the application of section 7 of Law No. 62/2017 in practice, including the number and content of annual equality plans adopted at the enterprise level, as well as their impact on the conciliation of work and family responsibilities.

Article 3 of the Convention. National policy. The Committee previously noted that the National Plan for Equality IV (2011–13) had the objective of mobilizing public and private entities for the implementation of equity plans that would ensure the reconciliation of work and family responsibilities and requested the Government to provide information regarding its implementation and specific measures adopted with a view to assisting men and women workers to balance their work and family responsibilities. It notes the Government’s indication, in its report, that, since then, the National Plan for Equality, Citizenship and Non-Discrimination V (V PNI) was implemented between 2014 and 2017 and included measures and actions aimed at promoting gender equality and better conciliation between work and family responsibilities. The Government states that the V PNI was used as a reference for the activities of the Labour Conditions Authority (ACT), which implemented actions in all sectors of activity. The Government adds that the Human Potential Operational Programme (POPH), revised in February 2014, also increased support for the promotion of gender equality through Priority Area 7 on gender equality, which sets specific general objective the promotion of a balance between work, family and personal life with a focus on parity in work and family responsibilities. The Committee notes the adoption of Parliamentary resolution No. 136/2017 of 29 June 2017 recommending that the Government submit to Parliament an annual assessment of the implementation of the various national equality plans. Noting that the National Plan for Equality, Citizenship and Non-Discrimination V ended in 2017, the Committee asks the Government to provide information on: (i) any new national policy specifically implemented to assist men and women workers in better conciliating work and family responsibilities; and (ii) the concrete measures implemented, in the framework of any other policy or programme aiming at ensuring equality of opportunity and treatment of workers with family responsibilities, such as the Human Potential Operational Programme, and their impact. It asks the Government to provide information on the annual assessment made of the various national equality plans, in particular concerning measures to facilitate the reconciliation between work and family responsibilities.

Protection from discrimination on the ground of family responsibilities. The Committee notes the concerns expressed by the CGTP-IN which highlights that, despite the fact that legislation expressly prohibits discrimination on the ground of family situation (section 24 of the Labour Code) and provides that employers shall ensure working conditions that facilitate conciliation between work and family responsibilities (section 127(3)), discrimination against women in employment remains common in practice. The CGTP-IN indicates that, 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. This illegal practice became more common during the economic and financial crises from 2013 to 2016. The CGTP-IN also indicates that, frequently, employment contracts of women who informed their employer of their pregnancy were not renewed or that such workers were dismissed. Furthermore, other rights linked with maternity, such as breastfeeding breaks or reduction of working time for childcare, were often violated. The CGTP-IN adds that men who want to enjoy their parental rights are frequently discriminated against and are subjected to strong pressure to renounce their rights. The CGTP-IN further indicates that conciliation between family and work responsibilities is becoming even more complex as a result of irregular and variable working hours, such as night work and shift work, which have become more common. The Committee also notes that the UGT highlights that the participation of women in the labour market is characterized by a high number of working hours and often precarious forms of employment, which, combined with a lack of social services with accessible prices and working hours compatible with professional life, has a negative impact on the reconciliation of work and family responsibilities. The Committee asks the Government to make every possible effort to ensure that men and women workers with family responsibilities receive adequate protection against discrimination in practice. It asks the Government to provide information on the proactive measures taken to ensure the effective implementation of the relevant legislative provisions, including awareness-raising activities for employers, as well as their impact. The Committee asks the Government to provide information on any cases of discrimination in employment and occupation based on family responsibilities dealt with by the labour inspectors, the courts, or any other competent authority, as well as the sanctions imposed and remedies granted.

Article 4. Leave entitlements equality. The Committee previously noted that, pursuant to the revision of the Labour Code (Act No. 7/2009), several measures were introduced to better assist workers to reconcile their work and family responsibilities. The Committee notes with interest the adoption of Law No. 120/2015 of 1 September 2015, which introduces several amendments to the Labour Code, including: (i) the possibility for both parents to take the parental leave simultaneously between the 120th and 150th day of leave (section 40(2); (ii) the extension of the duration of the compulsory part of paternity leave from 10 to 15 days (section 43); (iii) the possibility for a worker with a child under 12 or with a chronic disease or disability, to request part-time work or flexible working time arrangements, without any impact on their performance appraisal or possibility for career promotion (sections 55–56); and (iv) whenever possible, the authorization for a worker with a child under 3 years of age to telework if the professional activity performed is compatible with this form of work and the employer can provide the necessary means to make that change possible (section 166). The Committee notes that, as regards the requests for part-time or flexible working time arrangements for care purposes, they can be refused by the employer on the grounds of compelling operational reasons or the impossibility of replacing the employee, but this justification has to be considered valid by the Commission for Equality in Labour and Employment (CITE), failing which the employer must challenge the CITE’s decision before the Court (section 57 of the Labour Code). The CGTP-IN however indicates that women of child-bearing age or workers with young children are facing strong pressure and harassment to renounce the exercise of such rights. The Committee notes, from the statistical information provided by the Government, that the number of men who benefited from paternity leave, took parental leave, and shared parental leave with women, increased between 2013 and 2015. In 2015, the number of men workers who took parental leave represented approximately a third of the total number of women workers who took such leave. The Committee however observes that while paternity leave is mandatory only 76 per cent of fathers accessed this leave entitlement in 2015. While recognizing that fathers are increasingly making use of parental leave, the UGT indicates that leave entitlements, flexible working hours and reduction of working time are still used predominantly by women, who continue to assume the main responsibility for family and domestic tasks, which consequently impedes an effective balanced representation of women in the labour market, especially in decision-making positions. The Committee notes that the European Commission also recently highlighted that despite the encouraging data relating to the use of family-related leave by the fathers, women remain predominantly responsible for caring roles, and that working fathers do not take full advantage of the several measures established by the Labour Code (European Commission, Country report on gender equality, 2019, Portugal, page 30). The Committees asks the Government to provide statistical data, disaggregated by sex, on the extent to which men and women workers make use of family-related leave entitlements and flexible working time arrangements, both in the public and private sectors, and to provide information on any progress made in that regard. Taking into consideration the persistent gender stereotypes concerning the sharing of family responsibilities, it further asks the Government to provide information on any proactive measures 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. The Committee asks the Government to provide information on the number of requests for part-time or flexible working-time arrangements for family responsibilities purposes rejected by the employers and submitted to the CITE, as well as the decisions taken by the CITE in that respect.

Article 5. Community planning and services. The Committee previously noted the measures adopted in the framework of the Programme for the Improvement of the Social Equipment (PARES) and the Programme for Integrated Support for Older Persons (PAII), including the establishment of new childcare facilities, home support services, residential homes and other facilities for workers with family responsibilities. It notes the Government’s indication that the PARES was continued and that the POPH also provides several support services for older persons. The Committee notes the adoption of several regulations which increase child benefits. It however observes that the Government does not provide updated information on the number and nature of the 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 asks the Government, once again, to provide updated information on: (i) the extent of childcare services available for men and women workers with family responsibilities; (ii) the number of workers making use of the existing childcare facilities; (iii) the number and nature of other community services, such as home support services, residential homes, etc., the existence of which assist workers to reconcile their work and family responsibilities; and (iv) the number of workers who benefit from the existence of these services and facilities.

Article 6. Awareness-raising measures. The Committee previously noted the awareness-raising activities undertaken by the Commission for Equality and for the Rights of Women, as well as information provided by the CITE on non-discrimination and reconciliation of work and family responsibilities to the public in general and to the social partners. The Committee notes the Government’s indication that the CITE continued to raise awareness and provide training through workshops for both the public and private sectors, at central and local level, and for employers’ and workers’ organizations, as well as through dissemination of information on legislative provisions on gender equality, protection of paternity and maternity and reconciliation of work and family responsibilities. The Government adds that, in 2014, the CITE provided intensive training on these issues for labour inspectors and collaborated closely with the ACT to better articulate their respective functions and carry out joint actions for employers. The Committee notes that as a result of the joint collaboration between the CITE and the ACT, a diagnosis tool was elaborated to assist labour inspectors in better identifying discriminatory situations and violations of legislative provisions on gender equality. The Government indicates that, pursuant to CITE’s request, in 2014 the Government carried out: (i) a national survey on time use by men and women in order to collect updated information on paid and unpaid care work to support the promotion and elaboration of public policy on the reconciliation of work and family responsibilities; and (ii) a project on the role of men in gender equality in order to promote better understanding and raise awareness, with a view to enhance public discussion and guide future actions. The Committee asks the Government to continue to provide information on the actions undertaken, including by the CITE, in order: (i) to promote a broader understanding in society, including among employers, of the principle of equality of opportunity and treatment for men and women workers and awareness of the rights and needs of workers with family responsibilities; and (ii) to address gender stereotypes regarding the role of men and women with respect to family responsibilities. It asks the Government to provide information on the impact of the awareness-raising activities undertaken, as well as any difficulties identified in that respect.

Article 7. Vocational guidance and training. The Committee previously noted that section 30(3) of the Labour Code provides that, as regards access to training, priority should be given to workers returning from parental leave or to single parents, and that the Government made reference to diverse programmes that addressed the issue of reintegration of workers into the labour market. The Government refers to section 61 of the Labour Code, which provides that the employer shall enable workers to participate in vocational training, after parental leave taken to assist a child or a person with chronic disease or disability, in order to facilitate their full professional reintegration. The Government adds that, pursuant to section 65(5) of the Labour Code, the worker has the right to resume their previous occupation after any type of leave. The Committee asks the Government to provide information on the application of sections 30(3), 61 and 65(5) of the Labour Code in practice. It further asks the Government to provide information on the specific vocational guidance and training measures adopted to ensure that workers with family responsibilities can become and remain integrated in 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 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). The Committee welcomes the adoption of Law No. 120/2015, amending the Labour Code, which provides that a failure by the employer to communicate to the CITE, the reasons for not renewing the employment contract of pregnant or breastfeeding workers, or those who have recently given birth, is considered a serious infringement (section 144(3) of the Labour Code). It further welcomes the adoption of Law No. 133/2015 of 7 September 2015, which provides that companies that have been found guilty by the Court of unlawfully dismissing pregnant or breastfeeding workers, or those who have recently given birth, cannot benefit from public allowances or other public support measures of any kind for a period of two years after the Court’s judgment. The Committee notes that, pursuant to section 2 of Law No. 133/2015, the CITE is the body responsible for recording all convictions in a final judgment of unlawful dismissal of a pregnant or breastfeeding worker, or a worker who has recently given birth; the courts have a duty to report such convictions to the CITE on a daily basis. The Committee notes, from the statistical information provided by the Government, that the number of opinions issued by the CITE concerning the decision of an employer not to renew the employment contract of pregnant or breastfeeding workers, or those who have recently given birth, increased significantly from 339 in 2013 to 585 in 2015, which in the Government’s view can be attributed to the economic and financial crisis. It notes that 20 per cent of the opinions issued by the CITE in 2015 referred to the dismissal of pregnant women, and that the CITE did not oppose dismissal in 38 per cent of those cases. It further notes that, in 2015, the CITE identified 23 cases of violation of section 63 of the Labour Code and 13 cases of violation of section 144 of the Labour Code. The Committee notes that the CGTP-IN indicates that, in the first months of 2016, the CITE registered 411 new complaints concerning non-renewal of employment contract of pregnant or breastfeeding workers, or workers who had recently given birth, which, according to CGTP-IN, reflects the current situation of the labour market. The Committee further notes that the European Commission recently highlighted that, in practice, the protection of maternity especially during pregnancy and immediately after giving birth is still needed, since pregnant women and young mothers are more easily dismissed (European Commission, Country report on gender equality, 2019, Portugal, page 45). The Committee asks the Government to provide information on the application of sections 63(2) and 144(3) of the Labour Code in practice, indicating the number of cases of non-renewal of the employment contract of pregnant or breastfeeding workers, or those who have recently given birth, notified to the CITE, as well as on the number, nature and outcome of corresponding complaints registered by the CITE. It 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, dealt with by the courts or any other competent authority, the sanctions imposed and remedies granted. The Committee asks the Government to continue to provide information on any measures taken or envisaged to ensure effective protection of men and women workers against dismissal on the ground of family responsibilities.

Article 11. Cooperation with employers’ and workers’ organizations. The Committee previously noted the Code of Good Practice for companies to assist reconciling work and family life, prepared by the CITE. Recalling the tripartite structure of the CITE, the Committee notes the Government’s indication that the CITE has been working with private sector organizations and public companies to implement, monitor and disseminate specific gender equality activities, in particular with regard to balancing work and family responsibilities. It notes that, in 2013, the CITE published a Report on good practices in enterprises, as provided for under resolution No. 13/2013, to compile the knowledge gathered after years of collaboration with enterprises. The Committee asks the Government to continue to provide information on the results of any measures adopted in collaboration with employers’ and workers’ organizations in order to support men and women workers in balancing their work and family responsibilities.

Enforcement. The Committee notes, from the statistical information provided by the Government, that despite the collaboration between the CITE and ACT, that the number of labour inspectors decreased from 371 in 2011 to 307 in 2015, together with the number of enterprises supervised (from 80,159 in 2011 to 39,306 in 2015). The Government adds that, in 2015, 892 labour inspections visits were carried out on discrimination, 53 sanctions were imposed and that the ACT identified 90 irregularities to be corrected. The Committee notes that the number of infringements concerning parental rights also decreased from 23 in 2013 to 12 in 2015, representing only 0.2 per cent of total infringements identified by the ACT. It further notes, from the statistical information provided by the Government, that between 2013 and 2016, the CITE received 47 complaints concerning maternity rights, four complaints concerning paternity rights, and 216 complaints of discrimination based on sex concerning reconciliation of work and family responsibilities and flexible working arrangements. The Committee notes that the CGTP-IN highlights that in the recent years there has been a rise in the number of complaints sent to the CITE alleging discrimination regarding the exercise of parental rights. 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 labour inspectors, the courts, or any other competent authority. It asks the Government to provide information on any difficulties encountered in the implementation of the Convention and on corrective measures taken or envisaged to overcome them.