Informe provisional - Informe núm. 105, 1968

66. This case was examined by the Committee at its 32nd Session (May 1962), when it submitted a report to the Governing Body setting forth its final recommendations with respect to most of the allegations which had been made, as well as certain conclusions and a request for additional information in regard to the remaining allegations. This report, the 65th, was approved by the Governing Body on 29 June 1962 at the close of its 152nd Session.

1. 67. When the case was before it again at its 34th Session (May 1963) the Committee once more submitted an interim report to the Governing Body, which is contained in paragraphs 145 to 174 of the Committee's 70th Report, adopted by the Governing Body on 1 June 1963 during its 155th Session.
2. 68. The conclusions contained therein were brought to the attention of the Government by a letter dated 7 June 1963, to which it replied by a communication dated 28 January 1964, which came before the Committee at its 36th Session (February 1964).
3. 69. At its session in February 1964 the Committee took note of the Government's statement that it had duly noted the recommendations of the Committee and that it would not fail to take them into account in the revision of national labour legislation which it was carrying out in collaboration with the employers' and workers' organisations of the country.
4. 70. The Committee accordingly recommended the Governing Body to take note of the Government's statement and to request the Government to keep it informed of any developments in the situation."
5. 71. Following approval of this recommendation by the Governing Body at its 159th Session (June 1964) the request referred to was brought to the Government's attention by means of a letter dated 18 June 1964.
6. 72. The Government replied by means of a communication dated 23 January 1968, in which it surveys the situation.
7. 73. Portugal has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), but it has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).
8. 74. The Government introduces its communication of 23 January 1968 by making a certain number of comments from which it may be seen that a fairly far-reaching reform of Portuguese social legislation is being carried out, that some progress has already been achieved and that further progress will shortly be forthcoming. However, the Government stresses the point that it will not be possible fully to appreciate the general orientation of this reform until all the provisions being prepared have come into force. It nevertheless expresses its desire already to draw attention to what has so far been accomplished.
9. 75. Before going on to a point-by-point examination of the questions raised by the Committee when previously considering the case, the Government again points out that it is bound only by the provisions of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and not by those of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), to which it is not a party.
10. A. The Prior Question Raised by the Non-Ratification by Portugal of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87)
11. 76. In this connection the Government states that, in accordance with the Constitution of the I.L.O, Convention No. 87, while deserving the greatest respect by Portugal, continues to have the status of a Recommendation for it, as it has not been ratified by Portugal, and " does not require it to introduce into its domestic law any provisions corresponding to those of the international instrument, despite its obligation to report at appropriate intervals to the Governing Body on the difficulties preventing ratification ".
12. 77. The Government acknowledges that the principle of freedom of association has been incorporated in the Constitution of the I.L.O, since the Declaration of Philadelphia is an integral part thereof. It further recognises the possibility of conceding that the Organisation is competent to examine allegations of violation of that principle, even where such allegations do not relate to breaches of obligations arising out of ratification of the Conventions relating to freedom of association.
13. 78. The Government asserts, however, that unless the act of ratifying Convention No. 87 is to be deprived of any legal significance the principle laid down in the Constitution of the I.L.O must not be confused with the detailed standards contained in that Convention.
14. 79. In conclusion, the Government expresses the opinion that, although the recognition of the right of freedom of association, as a general standard, is incumbent on all States Members, there may be different concepts regarding the method to be followed in order to attain the aim in question.
15. 80. While recognising that non-ratification by Portugal of Convention No. 87 means that that country is not under the same obligations as if it were a party to that instrument, the Committee wishes to point out that, with regard to freedom of association, it was precisely in order to supplement the machinery of supervision established with a view to ensuring the application of ratified Conventions that it was decided to institute special machinery of which the Committee on Freedom of Association is an essential element and which-following the principle that " the function of the International Labour Organisation in regard to trade union rights is to contribute to the effectiveness of the general principle of freedom of association as one of the primary safeguards of peace and social justice " -is empowered to examine complaints relating thereto lodged against States Members of the Organisation, whether they have ratified the Conventions relating to freedom of association or not.
16. 81. As it has already done in several previous cases and in particular when it examined on a previous occasion the present case, the Committee wishes to point out that it has always considered it appropriate " that it should, in discharging the responsibility to promote these principles which has been entrusted to it, be guided in its task, among other things, by the provisions relating thereto approved by the Conference and embodied in 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), which afford a standard of comparison when examining particular allegations ".
17. 82. As the Government has presented its observations on the substance of the case the Committee intends to examine the case in the above spirit with a view to reporting to the Governing Body on the subject.
18. B. Examination of the Substance of the Case
19. (a) Restriction of the Number of Trade Union Organisations That May Be Formed
20. 83. On this point, a detailed analysis of which is contained in paragraphs 13 to 25 of its 65th Report, the Committee recommended the Governing Body:
21. (a) to decide, with respect to the allegations relating to the restriction of the number of organisations that may be formed, to draw the attention of the Government to the importance which it has always attached to the generally accepted principle that workers should have the right to establish and join organisations of their own choosing without previous authorisation, and to its view that the provisions of Legislative Decree No. 23050 of 23 September 1933 prohibiting the recognition of more than one trade union in any one occupation in a given district are incompatible with this principle
22. 84. In its communication of 23 January 1968 the Government makes the following comments in this connection. It recalls that membership of trade unions is not compulsory in Portugal and that such membership is not restricted on any ground, whether ideological or social. The Government further states that trade unions are always established on the initiative of the workers and will necessarily follow the orientation given to them by their members. The Government considers that there would only be violation of the principle of freedom of association if membership were compulsory or if membership of the trade unions were restricted to workers of a particular orientation.
23. 85. The Government goes on to state that section 3 of Legislative Decree No. 23050, which laid down the rule that only one union would be recognised for each occupational category and district, " no longer applies ". It then mentions that Legislative Decree No. 27228 of 1936 enables multi-district unions to be established and that dozens of unions have since then been set up with a geographical scope very different from that of the district.
24. 86. The Government then quotes some of the recommendations adopted by the Third National Labour Conference, held in 1963, in which reference is made to the desirability of structural changes and of regrouping weaker unions, of introducing more flexible concepts of " occupations " and " occupational categories ", and of the possibility of providing for the representation of non-organised occupations by existing unions, etc. The Government states that, in accordance with this orientation and thanks to considerable flexibility in the legislative provisions in question, many unions are now seeking to change their structures, with complete approval on the part of the Government.
25. 87. The Government then emphasises that, despite the provisions of Legislative Decree No. 23050, it has always been recognised that a particular occupation can be represented in a given region by more than one union, according to the industry concerned. The Government quotes the example of office employees in the wool industry who have joined the union for that industry rather than unions of office employees, although these also exist in the regions concerned.
26. 88. The Government further states that the existence of a trade union has not prevented the establishment of other workers' associations in the same region whenever those concerned have considered this desirable; for example the establishment of the Association of Portuguese Female and Male Nurses in 1965 did not give rise to any opposition despite the fact that a similar union already existed.
27. 89. It would appear from the explanations supplied by the Government regarding this aspect of the case that a certain degree of liberalisation of the system has taken place or is at least contemplated. This liberalisation appears to have taken the form of less stringent application of the provisions of Legislative Decree No. 23050, whereby the establishment of trade unions has been authorised on a basis other than that of the district; it seems also to have resulted in the possibility for a single occupation to be represented by more than one union in a particular region; and it also appears to have been expressed in the greater flexibility advocated by the National Labour Conference in 1963 with regard to the concepts of " occupation " and " occupational category ".
28. 90. The Committee notes this trend towards development of the situation but it considers itself bound to obtain a precise idea of the extent to which the previous system has been altered. In its observations the Government states that section 3 of Legislative Decree No. 23050, which provided that only one trade union would be recognised for each occupational category and district, " no longer applies " and that Legislative Decree No. 27228 of 1936 enables trade unions covering more than one district to be set up. It does not seem possible to deduce from the Government's explanations that the promulgation of Legislative Decree No. 27228 resulted in the repeal either of Legislative Decree No. 23050 as a whole or of section 3 alone. If reference is made to the text of Legislative Decree No. 27228 it will be noted that under the single section constituting this instrument " the Assistant Secretary of State for Corporations and Social Welfare may authorise the establishment of national trade unions for areas of two or more districts if it is found impossible to organise certain occupations in any other manner ". It emerges from the final clause that it is only where an occupation cannot be organised according to the rule of a single union per district that this rule may be waived. Subsection 2 of the single section of Legislative Decree No. 27228 moreover states that these unions or union branches shall be designated as " national union of (occupation) for the district of " as provided for in section 5, subsection 1, of Legislative Decree No. 23050 ".
29. 91. If the Committee's interpretation of the situation is correct, and it recommends the Governing Body to request the Government to state whether in fact it is, it does not appear to the Committee that it needs to change the conclusions at which it arrived in paragraph 88 (a) of its 65th Report, namely that a system under which only one trade union can be recognised for each district and occupation is incompatible with the generally accepted principle that workers should have the right to establish and join organisations of their own choosing.
30. 92. The Committee notes, however, that the Government in its observations maintains that the existence of trade unions has not prevented the establishment of other workers' associations in the same regions when this has appeared desirable to those concerned, the example being quoted of the Association of Portuguese Female and Male Nurses, which was established although a similar union already existed.
31. 93. The Committee would like to know whether associations thus set up alongside existing trade unions are empowered to represent the workers on the same footing and in the same conditions as those unions, and, if not, what scope for action such associations have, and what is their role and their precise status.
32. 94. The Committee therefore recommends the Governing Body to request the Government to be good enough to provide the information outlined in the preceding paragraph.
33. (b) Obligation to Submit Trade Union Rules for Approval by the Authorities
34. 95. With regard to this aspect of the case, which is analysed in detail in paragraphs 26 to 37 of its 65th Report, the Committee recommended the Governing Body:
35. (b) to decide, with respect to the allegations relating to the approval of trade union rules by the authorities, to draw the attention of the Government to its view
36. (i) that the limitation placed by section 15 (e) of Legislative Decree No. 23050 on the right of trade unions to determine for themselves what proportion of the contributions received by their own union branches shall be paid to the parent unions is not compatible with the generally accepted principle that workers' organisations should have the right freely to draw up their Constitutions and rules and to organise their administration and activities;
37. (ii) that a situation in which the approval of trade union rules by the administrative authorities as a necessary condition for the legal existence of the organisation is accompanied by a condition that such authorities shall at the same time be satisfied, in their own discretion, that the proposed organisation is justified in view of the economic and social interests of the community, which appears to be the position subsisting under the provisions of Legislative Decree No. 23050, is not compatible with the generally accepted principle that workers should have the right to established organisations " without previous authorisation ";
38. (iii) that for the reasons indicated in paragraphs 35 to 37 above, the provisions of section 15 (b) and (c) of Legislative Decree No. 23050 are not compatible with the generally accepted principles that workers' organisations should have the right to draw up their Constitutions and rules, to organise their activities and to formulate their programmes, that the public authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof, and that the law of the land should not be such as to impair or be so applied as to impair the effective enjoyment of this right.
39. 96. In its observations the Government states that it has agreed in principle to a new text of section 15 of Legislative Decree No. 23050 recently submitted to it by the bodies responsible for putting into effect the conclusions of the National Labour Conferences. The Government goes on to state that the proposed wording, in its view, satisfactorily meets the observation made regarding the right of trade unions to determine the proportion of contributions which they should receive from their branches and freely to organise their administration and activities.
40. 97. As quoted by the Government, the text proposed in place of the existing section 15 of Legislative Decree No. 23050 reads as follows:
41. The rules shall contain the regulations necessary for the organisation of the trade union and the achievement of its aims, and in particular those relating to:
42. (a) the name, headquarters and purposes of the organisation;
43. (b) the structure of the union, the method of appointing its governing bodies and their powers;
44. (c) the management of the union and its accounting arrangements;
45. (d) provisions governing admission of members, their rights and duties, and sanctions to apply in the event of failure to comply with the rules of the union;
46. (e) membership fees, contributions, procedure for their periodical review and times of payment;
47. (f) the establishment, operation and dissolution of local branches, women's branches, delegations and groups covering particular occupations or industries;
48. (g) the system of consultation with delegates;
49. (h) the organisation of occupational schools and services;
50. (i) cultural activities;
51. (j) dissolution of the union.
52. 98. The Committee notes that this new draft omits the provisions of section 15 of Legislative Decree No. 23050 to which the Committee drew attention in paragraph 37 of its 65th Report. These provisions, contained in clauses (b) and (c) of section 15, require the inclusion in trade union rules of a declaration of respect for the principles and purpose of the national community, an express renunciation of any and every form of activity, internal or external, which is contrary to the interests of the Portuguese nation, and recognition of the fact that the trade union constitutes a factor required for active co-operation with all the other factors of the national economic system, and consequently a repudiation of the class war.
53. 99. The Committee believes that the deletion of these two clauses could constitute an improvement over the previous system. It therefore recommends the Governing Body to express the hope that this view will be taken into account in the adoption of the final text to replace the existing section 15 of Legislative Decree No. 23050 and to request the Government to communicate the wording adopted once the text is promulgated.
54. (c) Restrictions on the Right of Trade Unions to Elect Their Representatives
55. 100. Regarding this aspect of the case, a detailed analysis of which is given in paragraphs 43 to 50 of its 65th Report, the Committee recommended the Governing Body to draw the attention of the Government to the importance which it attaches to the principle that workers' organisations should have the right to elect their representatives in full freedom and to organise their administration and activities, and to express the view that the provisions of Legislative Decree No. 25116 of 12 March 1935, subjecting the results of trade union elections to governmental approval, and of Legislative Decree No. 32820 of 31 March 1942, empowering the Government to appoint management committees to replace the elected committees of trade unions, are not compatible with this principle.
56. 101. With regard to the questions raised in this aspect of the case, the Government gives the following explanations.
57. 102. The Government observes first of all that Legislative Decree No. 25116, mentioned by the complainants, which makes it compulsory for trade union elections to be approved by the Minister for Corporations and Social Welfare, refers only briefly to this obligation in section 3. The Government points out that the provision which does declare ministerial approval of trade union elections to be necessary is section 15, subsection 5, of Legislative Decree No. 23050. The Government explains that the Third National Labour Conference was referring to this provision in its conclusion recommending the Government to change the established system " so as to make it more compatible with the autonomy and efficiency of organisations ".
58. 103. The Government states that this recommendation has been followed in two drafts prepared for new legislation on trade unions which substantially modify the existing system, in particular by dispensing with compulsory ministerial approval of elections. Under these drafts examination of the results of elections will, as explained by the Government, be carried out in each union by a committee chosen by the general assembly of that union, with provision for appeal to a court of law against the committee's decisions.
59. 104. While considering it probable that the general orientation thus outlined is that which will be adopted, the Government acknowledges that it has not yet taken a final decision on the drafts submitted to it.
60. 105. The Government asserts that, even under the existing system, administrative intervention has the sole purpose of verifying the proper conduct of elections.
61. 106. Even if, as the Government states, the sole purpose of administrative intervention under the existing system is to verify the proper conduct of elections, the Committee considers that it would be decidedly preferable, as is now contemplated, for such verification to be carried out by bodies elected at trade unions' general assemblies, with the possibility of appeal to a court of law against the decisions of those bodies.
62. 107. The Committee notes, however, that the new system proposed is still at the draft stage and that the Government itself states that it has not yet approved the drafts.
63. 108. In these circumstances the Committee recommends the Governing Body to express the hope that the proposed reform in regard to trade union elections will be carried out in the near future and that the view expressed in paragraph 106 above will be taken into account, and to request the Government to be good enough to communicate the final text adopted in this connection once it has been promulgated.
64. (d) Suspension and Dissolution of Trade Union Organisations by Administrative Authority
65. 109. With regard to this aspect of the case, which is analysed in paragraphs 51 to 55 of the Committee's 65th Report, the Committee recommended the Governing Body:
66. ......................................................................................................................................................
67. (i) to draw the attention of the Government to the importance which the Governing Body has always attached to the principle that workers' and employers' organisations should not be liable to be dissolved or suspended by administrative authority;
68. (ii) to express its view that the provisions of sections 10 and 20 of Legislative Decree No. 23050 of 23 September 1933 are not compatible with this principle.
69. 110. Regarding the question mentioned in the footnote to paragraph 105 above (see also the second part of paragraph 100 above), the Government states first of all that it has had studies carried out with a view to the amendment of Legislative Decree No. 32820 of 1942 a which permits the appointment of management committees to replace trade unions' elected committees in exceptional circumstances. The Government announces that the results of these studies have recently become known and have been submitted to it; in the studies it is proposed that the only cases in which trade unions could be managed by committees " should be those where their management bodies have been suspended by judicial decision " (see paragraph 112 below).
70. 111. The Government goes on to state that the problem of the dissolution of trade unions is closely linked with that of the suspension of their governing bodies, " that is to say, with the complex question of the liability of union officers ".
71. 112. In this connection the Government quotes the draft of a new text for section 21 of Legislative Decree No. 23050, which would read as follows: " The members of the governing bodies shall be personally liable for the infringement of legislative provisions or union rules and they may be removed from office through proceedings brought before a labour court by any member of the union or by the public prosecutor "; under this draft " The judge may, upon application by the plaintiff or the public prosecutor, order suspension of the governing bodies for the duration of the proceedings "; the draft further provides that " During such suspension, which shall not exceed the time required for new elections, the union shall be managed by a committee of not less than three and not more than five persons ". A new draft of section 20 of Legislative Decree No. 23050 lists the possible grounds for dissolution of a trade union, namely following a decision to that effect by the general assembly of the union or if it is found that the organisation has engaged in unlawful activities. The Government adds that in the latter case the draft also provides that, during the duration of investigation, the court may decide to suspend the governing bodies.
72. 113. The Government further states that the procedure for dissolution and the method of appointing the members of provisional committees are now being studied.
73. 114. Although the new system proposed appears at first sight to constitute some improvement as compared with the existing situation, the Committee notes that no final decisions have yet been taken in this connection and therefore considers that it should wait before stating its findings. It therefore recommends the Governing Body to request the Government to be good enough to keep it informed of developments in this connection.
74. (e) Compulsory Trade Union Contributions
75. 115. Concerning this aspect of the case, which is analysed in paragraphs 56 to 62 of its 65th Report, the Committee recommended the Governing Body:
76. (f) ... to draw the attention of the Government to its view that the power given to the competent Minister, under Legislative Decree No. 29931 of 15 September 1939, to impose an obligation on all the workers in the category concerned to pay contributions to the single national trade union which is permitted to be formed in any one occupation in a given area is not compatible with the principle that workers should have the right to join organisations " of their own choosing ".
77. 116. In its observations the Government points out that section 2 of Legislative Decree No. 29931, which empowers the Ministry for Corporations and Social Welfare to make trade union contributions compulsory for certain categories of workers, stipulates that this obligation may be prescribed only " when the circumstances justify it ". The Government states that in almost all cases the use of this power has depended on the prior conclusion of collective agreements and that the governmental decision " has been no more than the legal form that was required to give effect to agreed stipulations ".
78. 117. The Government adds that this policy has made it possible to keep the dues payable by members of a large number of unions at a very low level while ensuring that these unions enjoy the income and independence needed in order to perform their functions without any form of subsidy.
79. 118. In any event the Government does not see in what way compulsory contributions are an infringement of the principle of freedom of association, since the obligation to contribute is never accompanied by an obligation to join a union, which would be inconsistent with that principle. The Government explains that it would consider it improper for a union which defends the interests of all the workers, for example in establishing for the benefit of all a collective agreement providing for better remuneration and conditions of work, to be maintained by the contributions of some only. " If all are to enjoy the benefits, then all should share the cost."
80. 119. Without wishing to state its views on the validity of the argument put forward by the Government in the preceding paragraph, the Committee would point out that, in countries with several unions, a compulsory contribution required by law might assume the character of a tax if it were to benefit a particular union which would thus be favoured over others. In certain circumstances this would be equivalent to infringement of the principles of freedom of association. Of course, where there is a single trade union-as is the case in Portugal, where the single national trade union authorised for each occupational category and district enjoys the privilege of representing all the wage earners, whether members of the union or not, and of entering into collective agreements on their behalf-compulsory contributions could obviously appear to be a logical corollary of the system." The Committee has, however, considered that this system is not compatible with the principles of freedom of association.
81. 120. What the Committee wanted to emphasise in its examination of this aspect of the case in its 65th Report was that the legal obligation to contribute to a trade union monopoly, irrespective of membership, represented further recognition and strengthening of the monopoly, which by definition corresponded to a system contrary to the principle that workers should have the right to constitute and join the organisations of their own choosing.
82. 121. Since the Government's explanations do not reveal any change in the situation as analysed in the Committee's 65th Report, the Committee recommends the Governing Body to confirm the conclusions it reached at the time regarding this point, as quoted in paragraph 115 above.
83. (f) Supervision of Collective Bargaining and Approval of Collective Agreements by the Public Authorities
84. 122. Regarding this aspect of the case, which is analysed in paragraphs 63 to 74 of the Committee's 65th Report, the Committee recommended the Governing Body:
85. ......................................................................................................................................................
86. (i) to draw the attention of the Government to the importance which the Governing Body has always attached to the principles:
87. (1) that workers' and employers' organisations should have the right to organise their activities and to formulate their programmes, and that the public authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof;
88. (2) that the right of workers' organisations to bargain freely with employers and employers' organisations with respect to conditions of work constitutes an essential element in freedom of association;
89. (3) that the public authorities should refrain from any interference which would restrict or impede the lawful exercise of the right of trade unions, through collective bargaining or other lawful means, to seek to improve the living and working conditions of those whom the trade unions represent;
90. (4) that measures appropriate to national conditions should be taken, where necessary, to encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or employers' organisations and workers' organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements;
91. (ii) to draw the attention of the Government to the Governing Body's view that the legislation providing for the intervention of the National Institute of Labour and Social Welfare in collective negotiations and requiring collective agreements to be submitted to the public authorities for approval is not compatible with the principles expressed in (1), (2), (3) and (4) above."
92. 123. Regarding these questions the Government notes first of all that they relate to the standards laid down in the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and not to those laid down in the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). It further notes that the complainants' allegations were made at a time when Portugal was not yet a party to Convention No. 98, which it ratified in 1964.
93. 124. The Government then states that, in view of its ratification of Convention No. 98, the standards laid down in that instrument have the force of law for Portugal. " In these circumstances ", it adds, " ratification would have the effect of repealing any previous legislative provisions which were inconsistent with those standards."
94. 125. The Government states that Portuguese legislation had in fact been profoundly modified even before ratification of the Convention, " in order to prevent any conflict with the international instrument ".
95. 126. The Government mentions a series of enactments from which it appears that " the application and improvement of collective contracts and agreements, as well as their interpretation and integration " come within the exclusive competence of the " corporative committees ", which are tripartite bodies established by the contracts themselves and in which there must be equal numbers of workers' and employers' representatives.
96. 127. The Government refers, however, to the presence on these committees of a state representative, namely a delegate of the National Institute of Labour and Social Welfare, who is responsible for guiding the drafting of collective agreements. But the Government adds that " this technical guidance, which is of a purely arbitral and auxiliary character, cannot be imposed on any agreement reached by the contracting parties ".
97. 128. It would appear from the Government's explanations and the enactments it mentions that a certain degree of liberalisation has taken place as compared with the system existing at the time when the complaint was lodged and that government intervention in regard to collective bargaining is less direct than it was previously. The Committee notes, however, that such intervention continues, and it expresses the view that " guidance " by a representative of the public authorities in the drafting of collective agreements does not appear consistent with the spirit of Convention No. 98, unless it consists exclusively of technical aid. This opinion must be put in even stronger terms if reference is made to Legislative Decree No. 43179 of 23 September 1960, mentioned in the Government's observations, which requires not only that each corporative committee should include a representative of the National Institute of Labour and Social Welfare but also that this representative should be the chairman of the committee (sections 1 and 26).
98. 129. The Committee therefore recommends the Governing Body to draw the Government's attention to the fact that intervention by a representative of the public authorities in the drafting of collective agreements, as provided for under Portuguese legislation, is inconsistent with the spirit of Convention No. 98, Article 4 of which provides for the full development and utilisation of machinery for voluntary negotiation between employers and workers, and to draw the above to the attention of the Committee of Experts on the Application of Conventions and Recommendations.
99. 130. With regard to the approval of collective agreements the Government states that it believes this to be essential " in view of the need for registration and publication ". " In conclusion ", the Government states, " it must be stressed that the Ministry, when giving its approval, cannot replace or modify provisions on which the parties have freely agreed."
100. 131. The Committee takes note of the Government's indications, from which it would appear that the approval of collective agreements is nothing more than a mere formality consisting of their " registration ". Before expressing its views on this aspect of the case, however, the Committee would like to know whether approval can be refused, and, if so, in what circumstances and for what reasons, and whether there is any possibility of appeal against refusal of approval.
101. 132. The Committee therefore recommends the Governing Body to request the Government to be good enough to provide the additional information referred to in the preceding paragraph.
102. (g) Restrictions on the Right of Trade Unions to Affiliate with International Organisations of Workers
103. 133. Regarding this point, a detailed analysis of which is given in paragraphs 38 to 42 of its 65th Report, the Committee recommended the Governing Body:
104. (c) ... to draw the attention of the Government to the importance which it attaches to the generally accepted principle that trade union organisations should have the right to affiliate with international organisations of workers, and to express the view that the requirement of governmental permission for such international affiliation is not compatible with this principle.
105. 134. The Government, in its observations, does not refer to the question of the affiliation of unions with international occupational organisations, mentioning only representation " in international organisations or congresses ". It states that such representation is not prohibited but must be authorised by the Government.
106. 135. Referring to the most recent national legislation, the Government states: " Considering that the structure of Portuguese occupational organisations affords more effective international representation when this is provided through the higher bodies to which trade unions belong, the legislation expressly provides that such representation shall be effected by the bodies in question (corporations), and in such cases no reference is made to any prior authorisation."
107. 136. There is nothing in the Government's observations to suggest that the situation with regard to the affiliation of trade unions with international workers' organisations or participation in such organisations' work and meetings is now in any way different from what was noted in the Committee's 65th Report.
108. 137. In these circumstances the Committee can only recommend the Governing Body to confirm the conclusions quoted in paragraph 133 above.
109. (h) Prohibition of Strikes under Portuguese Legislation
110. 138. With regard to this aspect of the case, which is analysed in paragraphs 75 to 82 of the Committee's 65th Report, the Committee recommended the Governing Body:
111. ......................................................................................................................................................
112. (i) to take note, with respect to the machinery for the settlement of disputes provided for under Portuguese legislation, of the Government's statement that " the issue of additional provisions, calculated to afford still more efficient safeguards to the workers in their campaign for social betterment, is now under examination ",
113. (ii) to draw the attention of the Government to the fact that the right of workers and their organisations to strike as a legitimate means of defending their occupational interests is generally recognised, and to the importance which the Governing Body attaches to the principle that, where strikes by workers are restricted or prohibited, such restriction or prohibition should be accompanied by the provision of conciliation procedures and of independent and impartial arbitration machinery;
114. (iii) to express the hope that the Government will have full regard to this principle in the course of the examination of the situation which it states is now being made with a view to the issue of additional provisions relating to the machinery for the settlement of disputes, and to request the Government to be good enough to keep the Governing Body informed of further developments in this connection;
115. ......................................................................................................................................................
116. 139. Concerning this aspect of the case the Government begins by stating that it is entirely in favour of the principle expressed in the second part of clause (ii) quoted above. The Government continues by stating that under new provisions it is the responsibility of the councils of corporations (or at least of some of them) " to deal with matters of general interest to the particular industry and its workers within the terms of reference of the corporation giving it competence in regard to conciliation, where no other bodies have been set up ".
117. 140. The Government considers that this system constitutes a rapid procedure for the settlement of collective disputes, " providing for the participation of the persons concerned ". It acknowledges, however, that this system could still be improved and mentions that studies are proceeding on the possibility of allotting the functions of conciliation to other corporative organs.
118. 141. The Government states that at present legislation enables the workers and the undertakings, if they so desire, to ask a jointly constituted corporative organ " for any necessary conciliation and arbitration action ".
119. 142. The Government adds that it has endeavoured, by means of adopting advanced social legislation, to eliminate the causes of potential collective disputes wherever it could. It states that in recent years no disputes have arisen which would be classified as " collective disputes " and which could have required recourse to " measures other than the normal arrangements for conciliation ".
120. 143. In conclusion, the Government states that, as no instance of loss of political rights by reason of strike action has occurred in recent years, the fact that persons deprived of their political rights are forbidden to join a trade union and, even more, to serve as trade union officers, is without any practical significance. The Government states that this problem will nevertheless be examined in the course of the revision of trade union law which it is now carrying out.
121. 144. The Committee recommends the Governing Body to take note of the information supplied by the Government with regard to methods of settling collective disputes and to request the Government to be good enough to keep it informed of any development in the situation.
122. (i) General Conclusion to the Government's Observations
123. 145. As a general conclusion to its observations the Government states that it has provided all the information requested by the Committee on Freedom of Association with regard to each of the points raised in the complaint by the International Confederation of Free Trade Unions on which further clarification was needed. The Government states, however, that it is " prepared to furnish any other elements which might still be considered useful and to facilitate any direct appreciation of Portuguese social realities which the Committee on Freedom of Association itself may wish to undertake ".
124. 146. Without prejudging any action which may be decided upon in this connection the Committee recommends the Governing Body to take note with interest of this statement by the Government.