Informe definitivo - Informe núm. 313, Marzo 1999

1. 177. The complaint of the State Technical Employees' Union (STE) is contained in communications dated 11 and 21 August 1998. The Government sent its observations in communications dated 15 and 21 January 1999.
2. 178. Portugal has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. The complainant's allegations

1. 179. In its communications dated 11 and 21 August 1998, the State Technical Employees' Union (STE) alleges violation of Article 7 of the Labour Relations (Public Service) Convention, 1978 (No. 151), ratified by Portugal. It recalls that this Convention provides that measures shall be taken to promote the full development and utilization of machinery for negotiation of terms and conditions of employment between the public authorities concerned and public employees' organizations, or of such other methods as will allow representatives of public employees to participate in the determination of these matters.
2. 180. The complainant trade union emphasizes that Legislative Decree No. 45/A/84 of 3 February 1984 recognizes in section 5(1) the right of public servants to bargain collectively concerning their conditions of employment.
3. 181. It explains that in this case it represents the Trade Union of Pilots of the National Institute of Port Pilotage, which carries out its duties in several maritime ports in this country, and that in this capacity it has endeavoured to negotiate the conditions of work of pilots for 1998 with the National Institute of Port Pilotage. It put forward proposals on which no negotiations took place owing to the employer institute's systematic refusal. The STE attaches with its complaint a chronological summary of the steps it had taken from December 1997 until the adoption of Order No. 395/98 of 11 July 1998 of the Ministry of Equipments, Planning and Territorial Administration. This Order fixes pilots' remuneration without any genuine negotiations with the trade union having taken place, according to the complainant. The Order, a copy of which is also attached, applies retroactively from 1 January 1998 although, according to the STE, the trade union was not consulted on the draft.
4. 182. The STE alleges further that notice was given of nationwide strikes of port and harbour entrance pilots on 22 May, 10 July and 30 July 1998 for an 11-day strike in June, a seven-day strike in July and a 16-day strike in August, with a minimum service being maintained. The aim of the strikes was to demand the right to participate in the revision of the Organic Act respecting the Institute and to protest against the absence of a satisfactory response to proposals to bargain collectively on conditions of employment for 1998. The National Institute of Port Pilotage and the Government allegedly replaced striking pilots in several instances. According to the STE, the intention was to lessen the impact of the strike and hence impair the workers' rights that are essential to the normal exercise of freedom of association. The STE encloses with its complaint photocopies of documents allegedly proving that striking workers had been replaced between 8 and 25 June 1998.
5. 183. The complainant trade union requests the ILO to urge the National Institute of Port Pilotage and the Government to observe Convention No. 151, Legislative Decree No. 45/A/84 of 3 February on the negotiation of conditions of employment in the public service and Act No. 65/77 of 25 August respecting the right to strike, as well as the Constitution of the Republic of Portugal, which lays down this right and prohibits the replacement of striking workers.

B. The Government's reply

1. 184. In its communications dated 15 and 21 January 1999, the Government provides the following information concerning the first allegation, according to which Order No. 395/98 of 11 July 1998 of the Ministry of Equipment, Planning and Territorial Administration revising the pay scale of pilots of ports and harbour entrances, applicable retroactively from 1 January 1998, had been published without consultation with the trade union and in violation of Convention No. 151 and Legislative Decree No. 45/A/84.
2. 185. According to the Government, the general regulations governing the Port and Harbour Entrance Pilotage Service was laid down by Legislative Decree No. 166/89 of 19 May. The Government states that in this case the collective bargaining process began in December 1997 between the National Institute of Port Pilotage and the State Technical Employees' Union representing part of the port and harbour entrance pilot workforce of this Institute. It explains that at the time the complainant trade union had presented a proposal to update the staff's conditions of employment for 1998. However, contrary to the provisions of section 7 of Legislative Decree No. 45/A/84, there was not the slightest justification for the trade union's proposal to raise pay. Nonetheless, the National Institute accepted it as a basis for negotiation on 2 February 1998 and convened the trade union to a meeting on 13 February 1998. The meeting did not take place as the trade union had not confirmed its attendance, which it acknowledges.
3. 186. In these circumstances, in order to reach a solution by consensus, on 6 March the Institute sent a counterproposal to the complainant trade union taking account of the Institute's budgetary constraints and the percentages laid down for the revision of wages and other financial benefits in a pay agreement signed between the representatives of the Government and the Federation of Trade Unions of the Public Administration, and even the STE (the complainant in this case) for 1998, dated 8 January 1998. The Government encloses a copy of this agreement, which provides for a 2.75 per cent increase in the pay scale for the general regime, special regimes and special corps. According to the Government, the STE did not respond to the counterproposal and the Institute convened a new meeting for 14 April, which was attended by the trade union this time without, however, an agreement being reached.
4. 187. On 6 May 1998 the Institute therefore informed the trade union of the following decisions:
   • -- the gradual annual improvement of the grade scale cannot begin in 1998 owing to the most recent revision of the pay scale in the previous year and the Institute's budgetary constraints;
   • -- the introduction of a risk allowance will be considered in due course when the Institute has been integrated in the port authorities.
5. 188. The Government specifies that the revision of pay was carried out in accordance with section 53 of Legislative Decree No. 361/78 and section 40 of Annex I, by order of the Minister of Equipment, Planning and Territorial Administration, based on a constant of the 2.75 rate of increase laid down in the 1998 pay agreement which had been signed by the complainant trade union, among others.
6. 189. Concerning the second allegation, according to which the National Institute of Port Pilotage and the Government had replaced striking pilots in several instances, the Government points out that section 6 of Act No. 65/77 of 26 August 1977 respecting the right to strike prohibits employers from replacing striking workers during a strike by persons who were not employed in the establishment or service concerned at the time the strike was announced, and that they may not hire new workers after that date.
7. 190. According to the Government, what Order No. 238/A/97 of 4 April allows is not the replacement of striking workers, but for certain vessels to manoeuvre without using the pilotage service; this authorization was extended a number of times. Under the Order, the movements and manoeuvres described in the general regulations of the port and harbour entrance pilotage service, approved by Legislative Decree No. 166/89 of 19 May, may be freely executed by captains of the merchant marine with recognized experience, whether or not they have a pilot's licence. These merchant marine captains authorized to manoeuvre vessels in accordance with the terms of the Order are not in any way related to the National Institute of Port Pilotage and are not officials, employees or even collaborators of the Institute. Moreover, vessels manoeuvring without having a pilot on board obviously do not have to pay piloting fees since they do not use the pilotage service.
8. 191. The Government concludes that as regards the first point, the right to bargain collectively was not violated during the revision of port and harbour entrance pilots' pay, since it was in fact preceded by a process of negotiation in which the complainant trade union and the Institute participated without, however, reaching an agreement. In the absence of an agreement, the revision was carried out on the basis of the figures laid down in the pay agreement of 1998 concluded between the Government, the Federation of Trade Unions of the Public Administration and the complainant trade union. Concerning the second point, there was no replacement of striking workers, since Order No. 238/A/97, which was extended, in fact made it optional for vessels to use the pilotage service when entering and leaving port, which is entirely different.

C. The Committee's conclusions

1. 192. This complaint of the State Technical Employees' Union (STE) refers to allegations of government interference in the process of collective bargaining, on the one hand, and replacement of striking workers during several strikes, on the other.
2. 193. There are considerable discrepancies between the versions of the complainant trade union and the Government as regards the first allegation. According to the complainant trade union, the Ministry of Equipment, Planning and Territorial Administration, by Order dated 11 July 1998, fixed the remuneration of port and harbour entrance pilots retroactively as of 1 January 1998 without any genuine negotiation with the trade union and without consulting the latter. According to the Government, on the other hand, a 2.75 per cent increase in the pay scales for the general regime, special regimes and special corps was accepted by all of the partners through a written agreement dated 8 January 1998 concerning the updating of wages and other financial benefits for 1998, signed by the Government, the Federation of Trade Unions of the Public Administration and the State Technical Employees' Union (the complainant in this case). As no agreement had been reached in bargaining process concerning port and harbour entrance pilotage, the Government proceeded to update the pay of this special corps by order of the Ministry of Equipment, Planning and Territorial Administration, based on the constants fixed by the 1998 pay agreement.
3. 194. The Committee observes that the complainant trade union had on 8 January 1998 accepted a pay increase of 2.75 per cent for the general regime, special regimes and special corps. In these circumstances, the Committee considers that there has been no violation of freedom of association on this point and that this aspect of the case does not call for further examination.
4. 195. Concerning the second allegation, the observations of the complainant trade union and the Government contradict each other. According to the complainant trade union, the employer and the Government replaced striking workers on several occasions during the strikes held by port and harbour entrance pilots, in order to weaken the trade union movement. According to the Government, on the other hand, the right to strike was respected and strikers were not replaced, in accordance with the legislative provisions on the right to strike laid down in section 6 of Act No. 65/77 of 26 August respecting the right to strike, which prohibits employers from replacing striking workers by persons who were not employed in the establishment or service concerned at the time the strike was announced. However, Order No. 238/A/97 of 4 April, which was prolonged several times, made it possible to authorize experienced captains of the merchant navy to enter and leave ports without a pilot. According to the Government, these captains are not related to the employer, i.e. the National Institute of Port Pilotage, neither are they officials, employees or collaborators of the Institute, and moreover they did not pay a pilotage fee to enter the ports.
5. 196. The Committee notes that Portuguese legislation contains a specific provision prohibiting employers from hiring workers to replace their own employees on strike. Moreover, in the light of the Government's observations, the Committee notes that the Government only authorized experienced captains to enter and leave ports without using the services of the Pilotage Institute. It is not for the Committee to comment on the appropriateness of such a decision, which did not constitute replacement of the striking workforce of the Pilotage Institute.