Observation (CEACR) - adoptée 2001, publiée 90ème session CIT (2002)

The Committee notes the Government’s report and the comments made by the General Confederation of Portuguese Workers (CGTP) and the Confederation of Portuguese Industry (CIP) on the application of the Convention.

1. Article 4 of the Convention. The Committee recalls that for a number of years it has been referring in its observations to section 35 of Decree No. 209/92 which envisages that any of the parties to collective bargaining or the administrative authority or (in the case of public enterprises) the Economic and Social Council may refer disputes arising from the negotiation of a collective agreement to compulsory arbitration, particularly where agreement is not reached within two months. The Committee notes that the CGTP and the CIP criticize the Decree in question and indicate that the imposition of compulsory arbitration is not suited to a process of free and voluntary bargaining. In this respect, the Committee notes that the Government: (1) refers to the reasons which gave rise to the legislation imposing compulsory arbitration (social agreements with certain trade union and employers’ federations, etc.) and points out that it has not yet been applied because the trade union and employers’ federations represented on the Economic and Social Council have not yet determined the list of persons who could act as arbitrators; (2) refers to paragraphs 257, 258 and 259 of the 1994 General Survey to justify the existence of compulsory arbitration; and (3) indicates that it notes the position of the Committee and is analysing the positions of the social partners concerning compulsory arbitration. The Committee recalls once again that legislation which allows one of the parties to a dispute to impose unilaterally the intervention of the administrative authority for the purpose of compulsory arbitration is inconsistent with the promotion of collective bargaining. In these circumstances, the Committee requests the Government, with a view to bringing its legislation into full conformity with the Convention, to take measures to amend the Decree in question so as to ensure that, except in the case of essential services, or for the conclusion of the first collective agreement or the emergence of a deadlock that cannot be overcome after protracted and fruitless negotiations, any recourse to compulsory arbitration is at the request of both parties only. The Committee requests the Government to provide information in its next report on any measure adopted in this respect.

2. The Committee notes that the CGTP refers in its observations to: the possibility of derogating from clauses in collective agreements under the terms of Act No. 21/96 of 23 July and Legislative Decree No. 64 A/89; the absence of labour regulations adopted by administrative authority in cases in which collective bargaining is not undertaken due to the absence of employers’ organizations; and the delay in the adoption of decisions to extend collective agreements.

With regard to the CGTP’s comments on the possibility of derogating from clauses of collective agreements that have been freely concluded under the terms of Act No. 21/96 of 23 July and Legislative Decree No. 64 A/89, the Committee recalls that in its observation in 1997 it had commented on Act No. 21/96, when it emphasized that a provision of a law establishing that normal working hours may not exceed 40 per week was not inconsistent with the Convention in so far as it implied an improvement in working conditions and did not prevent the parties from negotiating and establishing a shorter working day in collective agreements. With regard to Legislative Decree No. 64 A/89 respecting the legal situation concerning the termination of individual employment contracts, the Committee notes that, even though section 2 provides that, unless legal provisions establish the contrary, their legal status cannot be changed by clauses in collective labour agreements or individual contracts, section 59 provides that the values and criteria for the determination of benefits, the time limits for disciplinary proceedings, the trial period and the notice period, as well as the priority criteria for retention in employment in cases of collective dismissals, may be determined by means of collective regulations taking the form of an agreement. The Committee considers that the Legislative Decree in question does not violate Article 4 of the Convention since it permits the social partners to negotiate a broad range of aspects related to termination of employment.

With regard to the CGTP’s comments on the absence of labour regulations adopted by administrative authority in cases in which there is no collective bargaining as a result of the absence of employers’ organizations, the Committee notes the Government’s statement that the Convention does not place the authorities under the obligation to take any action in such cases and that there are six employers’ confederations covering all branches of economic activity which have the capability of concluding collective agreements.

Finally, with regard to the CGTP’s comments on the delay in adopting decisions to extend collective agreements, the Committee notes the Government’s indication that this matter is not covered by the Convention and that there could have only been a delay of one month in two cases.