Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 299, Junio 1995

1. 285. In a communication dated 15 June 1994, the General Union of Workers (UGT) presented a complaint of violation of freedom of association against the Government of Portugal. The Government sent its observations on this case in a communication dated 23 February 1995.
2. 286. Portugal has ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), the Right to Organize and Collective Bargaining Convention, 1949 (No. 98), and the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. The complainant's allegations

1. 287. In its communication dated 15 June 1994, the General Union of Workers alleges that the Portuguese Government has violated Conventions Nos. 87 and 98 as regards the determination of the minimum services to be maintained in the event of a strike.
2. 288. The UGT points out that in Portugal the right to strike is recognized in the Constitution (article 59(1)) and that its exercise can only be restricted exceptionally if it stands in the way of meeting vital social needs. It explains that the exceptional restrictions on the exercise of the right to strike are laid down in section 8 of Act No. 65 of 26 August 1977 respecting the right to strike, as amended by Act No. 30 of 20 October 1992, which provides as follows:
   • Section 8. Obligations during a strike. (1) In undertakings or establishments existing to satisfy essential social needs the obligation on trade union associations and workers shall subsist during a strike to ensure performance of the indispensable minimum of services required to satisfy such needs.
3. (2) For the purposes of the immediately preceding subsection, undertakings or establishments in any of the following sectors shall, inter alia, be deemed to be undertakings or establishments existing to satisfy essential social needs:
   • (a) postal services and telecommunications;
   • (b) medical, hospital and pharmaceutical services;
   • (c) sanitation services, including undertakers;
   • (d) power supplies and mines, including fuel supply;
   • (e) water supply;
   • (f) firemen;
   • (g) transport, including ports, airports, railway and truck stations for passengers, animals and perishable foodstuffs and essential goods for the national economy, including their loading and unloading.
4. (3) Trade union associations shall be obliged to perform during a strike the services necessary for the safety and upkeep of equipment and installations.
5. (4) The minimum services for which provision is made in (1) may be defined by collective agreement or agreement with the workers' representatives.
6. (5) In the event of there being no agreement before advance notice to strike as regards the definition of the minimum services for which provision is made in (1), the Ministry of Employment and Social Security shall convene the workers' representatives referred to in (3) and the employers' representatives, with a view to the negotiation of an agreement on minimum services and the means of providing such services.
7. (6) In the event of there being no agreement by the fifth day following the advance notice of strike, the definition of the services and means to which reference is made in the previous subsection shall be established by joint order, with reasons adduced, by the Ministry of Employment and Social Security and the minister responsible for the sector of activity, with account being taken of the principles of needs, adaptation and proportionality.
8. (7) The order for which provision is made in the previous subsection shall have immediate effect following its notification to the representatives mentioned in (5) and must be posted up in the installations of the enterprise or establishment, in the places usually reserved for information to workers.
9. (8) The workers' representatives mentioned in (3) shall designate the workers to be assigned to the provision of the services to which reference is made in (1) and (3) above forty-eight hours before the beginning of the strike period, failing which such designation shall be established by the employer.
10. (9) In case of inobservance of the obligations set forth in subsections (1), (3) and (8), the Government may decide upon requisition or mobilization in accordance with the appropriate law.
11. 289. The UGT explains that the Public Prosecutor of the Republic had stated in an opinion issued in 1982 that "the fixing of minimum services is not intended to ensure the normal continuity of the services, but merely to ensure a minimum continuity to meet vital social needs, as well as maintenance of the enterprise".
12. 290. The UGT states further that the Constitutional Court, having examined the constitutionality of section 8(6) of the Act respecting the right to strike, as amended in 1992, ruled that legal restrictions on the right to strike could only exist within the formal and material limits established by the Constitution. The Constitutional Court upheld the constitutionality of this provision, given the importance of the general interests on which this restriction is based and the fact that administrative intervention is the last stage in the process and occurs only in the event of failure by the parties to the dispute to reach an agreement.
13. 291. The UGT lists the restrictive criteria which it considers should be respected when determining the minimum services to be maintained in the event of a strike, including the need to "maintain intact the dynamics between the parties to the dispute". However, according to the UGT, "in nearly all cases when it is required to intervene in the fixing of minimum services the Government systematically and repeatedly violates the constitutional and ordinary provisions which define and regulate the right to strike" in enterprises in which it holds all or the majority of the capital. The UGT cites examples occurring in 1993 and 1994 in support of its assertions.
14. 292. In 1993, the first example concerns the Portuguese radio company Marconi SA, in which the volume of services to be maintained was fixed in such a way as to continue normal work within the enterprise. The same occurred on two other occasions, in the transport company Transtejo Transportes Tejo SA and in the Portuguese airline company TAP SA; in the first case the minimum service required by the two ministries was 75 per cent of the usual services during so-called peak periods in Transtejo Transportes Tejo SA, while in the second case it applied to all flight operations between the continent and the autonomous regions, as well as between the latter.
15. 293. The examples cited for 1994 again refer to the transport company Transtejo Transportes Tejo SA, as well as twice to the enterprise Carris de Ferro de Lisboa. According to the UGT, in the latter case the minimum services required comprised the normal and regular operation of practically all the urban transport lines.
16. 294. The UGT adds that unacceptable restrictions were being placed on the right to collective bargaining, since employers in these sectors knew that, during a dispute, the Government would intervene in the event of a strike, fixing minimum services which went well beyond the scope prescribed by the law. In addition, the UGT explained that a worker's refusal to obey the order to provide minimum services would result in termination of his or her contract of employment for just cause.

B. The Government's reply

1. 295. In its reply dated 23 February 1995, the Government points out that the ILO Conventions contain no provision expressly referring to the right to strike. None the less, it states that the principle according to which the right to strike is one of the essential elements of the right to organize can be admitted, as it is by the supervisory bodies of the ILO. However, it considers that the case-law developed by the Committee of Experts on the Application of Conventions and Recommendations concerning the right to strike does not have the binding legal force it would have if it were based upon principles enshrined in the international instruments of the ILO, the more so since it was not developed with the tripartite participation of governments, employers and workers.
2. 296. In any case, as regards the maintenance of minimum services in Portuguese law, the Government confirms that the right to strike is guaranteed by the Constitution and by legislation, but that when it is exercised by workers in enterprises or establishments producing goods or services meeting vital social needs, it may prevent such needs from being met. This is why the law requires striking workers and their trade unions to maintain during a strike the minimum service that is indispensable to meeting these needs. The Government adds that this obligation had already been established in 1977 by the first version of the Act, No. 65/77. However, the initial version of the Act did not state expressly who was to decide whether a minimum service should be maintained by workers and their trade unions and what the extent of such a service should be, nor did it provide for a procedure for making this decision. At the time, there was a widespread view that it was for the striking workers or their trade unions to take the decision concerning the maintenance of a minimum service and to determine what human resources were necessary for this purpose. The Government stresses that in the cases referred to in the complaint, each of the strikes mentioned by the UGT had been preceded by a meeting between the enterprise and the trade unions with a view to arriving, by common agreement, at a definition of the minimum service to be maintained during the strike. In all of these negotiations the trade unions refused to negotiate a minimum service, their attitude being based on the view that it is for the trade unions to define the minimum service.
3. 297. The Government goes on to explain that, for some 15 years, there have been a number of cases of strikes in enterprises meeting vital social needs during which the workers and trade unions failed to maintain the minimum service indispensable to meeting these needs. It was this experience which led the Assembly of the Republic to revise the Act of 1977 in 1992. The revised version of the Act upholds the principle that the right to strike should be exercised in such a way as to enable vital social needs to be met and that workers and their trade unions must accordingly maintain the indispensable minimum service during the strike. The effects of amending the Act are as follows:
4. (1) the strike notice to be observed in enterprises and establishments meeting vital social needs has been raised from five to ten days;
5. (2) decision-making procedures have been introduced concerning the maintenance of a minimum service to ensure that vital needs are met and the necessary human resources to this end.
6. 298. The Government emphasizes that the Act provides that the minimum service should in the first instance be defined by agreement between the parties, either in the terms of a collective agreement or as a result of negotiations between the employer and workers' representatives concerning a given strike. In future, whenever strike notice is given in an enterprise meeting vital needs and no agreement is reached concerning maintenance of a minimum service, the Ministry of Employment and Social Security must, before the strike begins, call a meeting between the employer and the workers' representatives in order for them to negotiate the extent of the minimum service to be maintained and the necessary human resources for this purpose.
7. 299. The Government admits that it may happen that the parties do not manage to reach an agreement. It explains that the minimum service to be maintained may then be determined through arbitration in two cases:
8. (1) During the negotiation of a collective agreement which is intended to contain provisions on the maintenance of a minimum service. If the parties fail to reach an agreement, they may decide to refer the dispute to arbitration concerning conditions of work and the maintenance of a minimum service (Legislative Decree No. 519-C1/79 of 29 December 1979, to lay down the legal principles governing collective labour relations, makes express provision for this system of arbitration (section 34)).
9. (2) When the enterprise and the trade unions are negotiating the minimum service to be maintained during a given strike, outside the framework of negotiation of a collective agreement.
   • The Government explains that in either of these two cases arbitration may enable an independent body to define the minimum service if no agreement has been reached.
10. 300. The Government adds that the law provides for still another procedure for referring disputes relating to the negotiation of collective agreements to arbitration, which the parties may use if they wish to regulate the maintenance of a minimum service through a collective agreement. A list of persons may be chosen from among the members of the Economic and Social Council (a tripartite institution including the trade union and employers' confederations) by agreement between the central organizations of employers and workers to arbitrate in disputes relating to the negotiation of collective agreements. The Government explains that the trade union and employers' confederations have not yet, however, chosen the persons to act as arbitrators, and that therefore the system cannot yet operate.
11. 301. The Government, through the Minister of Employment and Social Security and the minister responsible for the sector affected by the strike, can only intervene and determine the minimum service to be maintained and the necessary human resources for this purpose after a negotiation meeting has been held between the parties, and if this meeting fails to reach an agreement. The reasons must be given for its decision, which must respect the principles of need, adaptation and proportionality of the service imposed. The extension of the period of strike notice from five to ten days strengthens one of the effects of notice, which is to encourage the parties to obviate the dispute. The ten-day notice period also allows careful thought to be given to a decision in the case of negotiation of the minimum service to be maintained, and allows the Government enough time to take a decision, where this is the case.
12. 302. The Government emphasizes that at the request of the President of the Republic, the Constitutional Court examined the constitutionality of the amendments to the Act even before their final adoption. This examination influenced the extension of the period of notice from five to ten days and the responsibility assigned to the Government, as a last resort, to decide on the minimum service to be provided. Doubts as to the constitutionality of the Act had indeed been raised by the protection of the right to strike afforded in the Constitution of Portugal, article 57 of which provides as follows:
13. (1) The right to strike is guaranteed.
14. (2) It is for the workers to define the scope of the interests to be defended by means of strike action; such scope shall not be limited by law.
15. 303. The Constitutional Court concluded unanimously that the amendments were in conformity with the Constitution. Among the grounds given for its decision, the Constitutional Court stated that:
16. (1) The obligation for striking workers to ensure that a minimum service is maintained is in conformity with the Constitution. The Court upheld this position, recognizing that the right to strike has "unwritten constitutional limits for the purpose of safeguarding other interests or property which are constitutionally guaranteed (for example, the requirement to guarantee a minimum service in hospitals, security services, etc.)".
17. (2) If, in the absence of an agreement, the Government is led to intervene in the last resort in order to ensure that a minimum service is maintained, it is for it to review the circumstances in each case, to weigh the interests of the parties and to judge each case on its merits.
    • The Government explains that the Court considered that the difficulty of making provision in the law for all the circumstances which could justify a restriction on the right to strike compels the Government to adopt a well-founded decision and to apply the criteria of need, adaptation and proportionality, so that judicial supervision can be exercised.
18. 304. In referring to the possibility for the Government to determine the minimum service to be maintained in the event of a strike when the meeting of vital social needs is at stake, the UGT lists restrictive criteria which it believes should be respected, including the need to "maintain intact the dynamics between the parties to the dispute". According to the Government, this expression is not very clear and has no basis in law. If the UGT meant that the Government, in the absence of an agreement and "as a last resort", in determining the minimum service to be maintained by striking workers in order to ensure that vital social needs are met, must guarantee that the strike maintains intact the effectiveness of the pressure brought to bear on the other party, then it is asking for the impossible. The Government points out that in so far as the determination of the minimum service and the necessary human resources is the result of an agreement, arbitration or - "as a last resort" - of government intervention, inasmuch as the striking workers must maintain a minimum service in order to meet vital social needs, a part - perhaps an infinitesimal part - of the strike's persuasive effect is inevitably lost.
19. 305. Contrary to the UGT's assertion, according to the Government it is not true that "in nearly all cases when it is required to intervene in the fixing of minimum services, it systematically violates constitutional and ordinary provisions relating to strike action". If this assertion corresponded to reality it would be very serious; if it is to be believed, the UGT should back it up with facts. But it merely presents cases in which it considers there to have been an abuse of power by the Government in defining minimum services.
20. 306. The Government provides an extremely detailed reply on each of these cases, refuting most of the allegations. In particular, as regards the strike held from 8 to 14 March 1993 in the Portuguese radio company Marconi SA, it states that this telecommunications enterprise holds a concession from a public telecommunications service whose interruption could endanger human lives and the security of the State. After strike notice had been given, the Ministry of Employment and Social Security had organized a meeting between the enterprise management and the trade unions in order for them to reach an agreement on the definition of a minimum service. During this meeting held on 2 March, the enterprise presented a proposal for minimum services, which the trade unions rejected. The latter proposed an inadequate definition, i.e. that "during the strike a service should be maintained so as to identify communications relating to the safety of human lives, telegrams between state offices involving the security of the State, of the national territory, etc.". The enterprise rejected this proposal and the Government, "as a last resort", had to determine the minimum service to be maintained in order to meet the population's basic needs.
21. 307. One of the trade unions that declared the strike and participated in preliminary negotiations, "Sindetelco", filed an appeal with the Supreme Administrative Tribunal for the annulment of the Government's order. Contrary to the UGT's assertion, according to the Government the determination of the minimum service to be maintained did not prevent the strike from taking place in the enterprise. Out of the 1,366 workers employed there at the time, 197 were designated, naturally according to the technical requirements of the work and required skills, to provide a minimum service during the seven days of the strike. Of these 197 workers, only 83 were on strike. The others worked normally, in accordance with their contract of employment, and the government order was not applied to them. In other words, only 6.1 per cent of the total staff of the enterprise, i.e. 83 out of 1,366 workers, were not able to strike as they wished because they had to provide the indispensable minimum service. In fact, the 197 workers assigned to the minimum service only represent 14.4 per cent of the total staff of the enterprise.
22. 308. In any case, the Government explains that the judicial procedure of the appeal for annulment of the government order before the Supreme Administrative Tribunal is running its course.
23. 309. The second case presented by the UGT concerns the strike held on 17 June 1993 in Transtejo Transportes Tejo SA, a river passenger transport company linking Lisbon and six localities on the southern bank of the Tagus: Barreiro, Cacilhas, Montijo, Porto Brandao, Seixal and Trafaria. The meeting organized by the Ministry of Employment and Social Security was held on 9 June (eight days before the strike). All the trade union associations which had called the strike attended it, except for a federation affiliated to the UGT that had also been summoned. The enterprise presented a proposal that the trade unions rejected, believing that it was not necessary to define a minimum service, for reasons of principle and in view of the short duration of the strike periods. Faced with this situation, the Government considered that a minimum service had to be maintained, in view of the tens of thousands of passengers using Transtejo daily, particularly at rush hour, to get to work. However, account was taken of the fact that there are other means of transportation between Lisbon and four of the localities concerned - Mantijo, Porto Brandao, Seixal and Trafaria. The minimum service was therefore limited to links with the two other localities, Barreiro and Cacilhas, and was determined to take account of the safety of river transport and access to the boats. If services were heavily reduced, there was a risk that excessive crowding, which is very difficult to control, would endanger the passengers' safety, which had to be avoided at all costs. It was therefore decided that the minimum service should represent 75 per cent of normal transportation services linking these localities during the strike periods. In accordance with the Government's decision, the enterprise maintained seven out of ten runs, morning, afternoon and evening, i.e. 70 per cent of normal services. Under the law and the government order, it was for the trade unions in the first instance to designate the workers assigned to the indispensable minimum service, failing which it would be for the enterprise to do so. As the trade unions refused, the enterprise designated the workers. Out of the 431 workers employed in the enterprise, 254 were on strike, that is 58.9 per cent. Only six of the workers assigned to minimum service were strikers (i.e. 1.4 per cent of total staff).
24. 310. The UGT appears to criticize the fact that certain members of the administration and ticketing services were made to work. The Government does not have enough information to confirm whether the latter included any of the six strike supporters assigned to the minimum service. However, it emphasizes that even when it is limited to the necessary minimum to provide basic services to the community, passenger transport service calls for a certain amount of organization and that, moreover, it has to charge fares, just as it does under normal conditions. The ticketing service must therefore operate in order to make sure that the passengers hold valid tickets and to charge those who do not hold such tickets.
25. 311. The Government states further that the trade unions did not file a court appeal for annulment of the order defining the minimum service to be maintained during the strike.
26. 312. The third case presented by the UGT concerns the strike which took place in TAP-Air Portugal SA from 15 to 17 April 1993 in all of the enterprise's air transport services. During the meeting held on 8 April (seven days before the strike), organized by the Ministry, the enterprise presented a proposal which the trade unions rejected. The latter did not present any counterproposal. Faced with this situation and as a last resort, the Government considered that the indispensable minimum service during the strike should provide on a normal and regular basis all flight operations between the continent and the autonomous regions of the Azores and Madeira, as well as between these archipelagos. The Government considered that adequate personnel should be assigned to this service, taking account of the technical organization of the enterprise, the safety conditions to be guaranteed and compliance with the provisions applicable to the performance of work in normal conditions. Certain trade unions filed an appeal for annulment of the government order with the Supreme Administrative Tribunal.
27. 313. The UGT criticizes the fact (1) that a minimum service was determined for all flights between the continent and the autonomous regions of the Azores and Madeira, as well as between these archipelagos; (2) that the staff assigned to these minimum services was determined in accordance with the provisions applicable to the performance of work in normal conditions.
28. 314. The Government replied in detail on the first point on the occasion of the court appeal for annulment, pointing out that: (1) regular air transport of passengers, goods and post between the continent and the autonomous regions of the Azores and Madeira is a public service; (2) TAP holds the monopoly of air links between the continent and the autonomous regions of the Azores and Madeira, except for the operation of a regional enterprise in the Azores; (3) the Constitution of the Republic of Portugal places sovereign bodies under the obligation to secure "the economic and social development of the autonomous regions, endeavouring especially to remedy inequalities resulting from insularity" (article 231(1)); (4) the law provides for special air transport rates between the continent and the autonomous regions for residents, students and sports teams; (5) in compensation, the TAP is reimbursed out of the state budget for costs borne under its "obligations as a public service"; (6) the political and administrative charter of the autonomous region of Madeira, approved by Act No. 13/91 of 5 June, provides that "the air transport of passengers between the continent and Madeira is an indispensable minimum service which must be provided in the event of a strike" (section 65(4)); (7) when it determined the minimum service to be maintained, it also took account of the fact that the strike was taking place during the week following Easter, a period of very heavy air traffic; (8) the strike affected all TAP flights, whereas a minimum service was only determined for flights between the continent and the autonomous regions of the Azores and Madeira, as well as between these archipelagos. The strike was observed all day on 16 April, plus three hours on the previous day and three hours on the following day. Out of the 122 flights scheduled for 16 April, the Government's decision only affected 16 flights to or from Madeira and the Azores (equivalent to eight return flights). A total of 502 workers were assigned. Out of a total staff of 9,749, 3,352 were on strike, that is 15 per cent of strikers and 5.2 per cent of the staff of the enterprise were assigned under the decision to maintain a minimum service. In this case too, the Government states that the procedure for annulment of the government order before the Supreme Administrative Tribunal is running its course.
29. 315. The fourth case presented by the UGT concerns the strike begun on 24 March 1994 by the trade unions in the enterprise Transtejo Transportes Tejo SA. "As a last resort", the Government considered that a minimum transport service had to be maintained, in view of the tens of thousands of passengers who use the enterprise's services daily, particularly at rush hour. A minimum service was provided only for links between Barreiro and Cacilhas, on the one hand, and Lisbon, on the other, amounting to 75 per cent of normal services, in order to ensure the safety of river transport and access to the boats. Only 14 strikers (3.3 per cent of total staff) were prevented from striking as they wished, in order to maintain the indispensable minimum service. The trade unions did not file an appeal for annulment of the joint order defining the minimum service to be maintained during the strike.
30. 316. The fifth case presented by the UGT concerns the strike held in the enterprise Carris de Ferro de Lisboa SA on 24 March 1994 from 2 to 6 p.m. This enterprise holds a concession from a public passenger transport service. A total of 347 workers, i.e. 11.7 per cent of the 2,910 workers called to strike, were assigned to work. During the strike, 162 of the 715 vehicles normally running were used, i.e. 22.7 per cent. The strike was observed by 940 workers, i.e. 32.3 per cent of the workers called to strike. According to the Government, the number of strikers who were prevented from striking as they wished because they had to maintain the minimum service was certainly lower than 347. The trade unions did not file a court appeal for annulment of the order determining the minimum service to be maintained.
31. 317. Lastly, the sixth case presented by the UGT concerns the strike held in the enterprise Carris de Ferro de Lisboa SA on 13 and 14 April 1994. The Government provides figures showing that 22 per cent of staff were on strike, and states that the trade unions did not file an appeal for annulment of the joint order defining the minimum service to be maintained during the strike.
32. 318. In conclusion, the Government states that it is clear from the above explanations that the UGT fails to justify its allegation that the State of Portugal violated Conventions Nos. 87 and 98 by organizing a minimum service when strikes were held in enterprises providing essential services to the community. In all the cases submitted by the UGT, the Government's decision to provide a minimum service had been taken as "a last resort" and always in compliance with the other provisions of national legislation.
33. 319. The Government asserts that it acted in accordance with the rules recommended by the Committee of Experts and the Committee on Freedom of Association as regards the possibility of establishing a system of minimum service in services which are of public utility, such as transport or telecommunications, in order to avoid causing irreversible damage to a large number of persons, who, as third parties, are not involved in the disputes giving rise to the strikes. (General Survey on freedom of association and collective bargaining, 1994, para. 160.) This service was reduced to a minimum in order to ensure the provision of basic services to the population, while guaranteeing the physical safety of workers and users. The organization of this service could have been determined by agreement or arbitration. However, referral to arbitration, which ensures that the decision is taken by an independent body, depends on the will of the parties. The offices of the Ministry of Employment and Social Security have always endeavoured to seek a negotiated agreement between the employer and workers' representatives before a strike is launched. Compared to the total staff of the enterprises, the number of workers assigned to minimum service, and thus prevented from exercising their right to strike as they wish, has always been limited. Moreover, there has been no violation of Convention No. 98. The Government has determined the minimum service to be maintained during strikes in full conformity with the law, without limiting the workers' right to collective bargaining and to organize.

C. The Committee's conclusions

1. 320. The Committee observes that this case relates to the determination of minimum services to be maintained in the event of a strike in public services, in particular in the land, air and river transport and telecommunications sectors.
2. 321. According to the complainant organization, the new Act, No. 30 of 20 October 1992 and the orders made under it by the Government in 1993 and 1994 violate the guarantees laid down in Conventions Nos. 87 and 98 in that, where the parties fail to reach an agreement on the definition of minimum services to be maintained in the event of a strike, the law authorizes the Government to define such services by order. According to the complainant organization, the Government intervened on six occasions to impose minimum services in non-essential services beyond what is strictly necessary to meet vital social needs.
3. 322. According to the Government, on the other hand, the new Act is in conformity with the principles laid down by the ILO supervisory bodies. The Act provides that minimum services may be defined by collective agreement or by ad hoc agreement between the employer and the workers' organizations, and that it is only as a last resort, in the event of failure to reach an agreement, that two ministers, by order with reasons adduced, may decide on the definition of minimum services to be maintained in order to meet vital social needs.
4. 323. As regards the application in practice of the new Act, the Committee notes that the complainant organizations consider that the minimum services which were imposed in 1993 and 1994 in the telecommunications and transport sectors were excessive. The Government acknowledges the fact that appeals have been filed with the judiciary bodies in certain cases but not in others. Cases pending in court concern only the strikes of March 1993 in the telecommunications sector and April 1993 in the TAP.
5. 324. The Committee considers that a minimum service could be appropriate as a possible alternative in situations in which a substantial restriction or total prohibition of strike action would not appear to be justified and where, without calling into question the right to strike of the large majority of workers, one might consider ensuring that users' basic needs are met or that facilities operate safely or without interruption.
6. 325. The Committee is also of the view that it is essential that the determination of such minimum services involve not only employers' organizations and the public authorities, but also the organizations of workers concerned. This not only allows a careful exchange of views on what in a given situation can be considered as minimum services limited to the absolutely essential, but also helps to ensure that the scope of the minimum service does not result in the strike becoming ineffective in practice because of its limited impact, and to dissipate possible impressions in the trade union organizations that a strike has come to nothing because of excessive and unilaterally fixed minimum services. (See 244th Report, Case No. 1342 (Spain), para. 154; and 248th Report, Case No. 1374 (Spain), para. 270.) Moreover, the Committee has taken the view that in the event of differences of opinion among the parties concerning the scope of minimum services to be maintained, legislation should provide that such a dispute should be resolved by an independent body, and not by the Ministry of Labour or the ministry or public enterprise concerned. (See 291st Report, Cases Nos. 1648 and 1650 (Peru), para. 467; and 292nd Report, Case No. 1679 (Argentina), para. 93.)
7. 326. In this case, the Committee notes that under Portuguese legislation the minimum service may be determined either by agreement between the enterprise and the trade unions or by referral to arbitration for which permanent provision is made in a collective agreement or decided on an ad hoc basis for a given strike where no agreement has been reached. The Committee also notes that the law provides for the establishment of a list of persons chosen from among the members of the Economic and Social Council by agreement between workers and employers' confederations to arbitrate in disputes relating to collective bargaining, but that the organizations concerned have not yet selected the persons to act as arbitrators. It is only as a last resort, in the absence of an agreement, that the ministers concerned intervene. In the cases raised by the complainants it seems that this ministerial intervention has led to the imposition of the requisitioning of an excessive number of workers. The Committee accordingly suggests that the parties proceed to designate the arbitrators provided for from among the members of the Economic and Social Council so that in the event of disagreement as to the extent of the minimum service the matter may be decided before the strike is launched, by an independent body. The intervention of the ministers concerned in defining the minimum services would thus no longer be applicable and could be repealed.
8. 327. In addition, observing that under the decision of the Constitutional Court criteria have been laid down for the definition of minimum services to be maintained in the event of a strike, that is, the criteria of need, adaptation and proportionality, the Committee has no reason to doubt that the independent judicial bodies, in this case the Supreme Administrative Tribunal, will exercise the supervision that is incumbent on them in all fairness. The Committee invites the Government to keep it informed of the outcome of the judicial decisions concerning the appeals filed by the trade unions.