Observation (CEACR) - adoptée 2006, publiée 96ème session CIT (2007)

The Committee notes the Government’s report for the period ending on 31 May 2005 and the replies to its previous comments. It also notes the inspection reports for the years 2002 to 2005 and the recently adopted laws: Act No. 99 of 27 August 2003 issuing the Labour Code and Act No. 35 of 29 July 2004 amending Legislative Decree No. 171 of 17 July 2004 on the structure of the Ministry of Social Security and Labour and the creation of the Institute for Occupational Safety, Health and Hygiene (to replace the IDICT), Legislative Decree No. 8 of 6 January 2005 on the organizational structure of the Ministry of Economic Activities and Labour, Legislative Decree No. 79 of 15 April 2005 on the structure of the Government, which creates the Ministry of Labour and Social Solidarity, Regional Regulatory Decrees No. 27-A of 28 August 2003 and No. 38‑A of 11 December 2004, relating respectively to the structure of the regional secretariat for education and culture of the autonomous region of the Azores and the administrative structure of the regional government of the Azores.

The Committee notes with interest the various decisions of the Constitutional Court and the courts of appeal of Lisbon, Evora and Porto imposing fines on enterprises for breach of the legal provisions on working hours, safety at work, leave, freedom of association, etc. The Committee lastly notes the comments made by the Portuguese Confederation of Tourism, the General Workers’ Union (UGT) and the Confederation of Portuguese Industry (CIP) on the application of the Convention, sent by the Government with its report, and of the Government’s views on the matters raised.

The Portuguese Confederation of Tourism believes that it is time to remedy the notorious failure to punish breaches of labour law and that the problem facing the country is a lack of information and of effective measures to end prevarication. Furthermore, the law should be implemented as part of a policy of prevention, an aspect hitherto neglected in favour of a policy of inspection and supervision. Lastly, although the creation of independent institutions to train labour inspectors is very important, it is a matter worth debating only if the human resources are there to cover the needs.

Though it welcomes the increase in the activities of the general inspectorate and the reduction in child labour and the number of fatal occupational accidents in all sectors of economic activity, the CIP, like the Portuguese Confederation of Tourism, regrets that the measures taken by the General Labour Inspectorate still focus more on sanctioning than on educating and informing.

The UGT is of the view that special attention should be paid to offences concerning the register of temporary work contracts, false self-employment, temporary work, false absences (including alleged sick leave), breaches of the rules on hours of work, unlawful overtime and even unpaid overtime, and arbitrary dismissals. Although it regrets that the strength of the inspectorate was reduced from 294 in 2003 to 280 in 2004, the UGT nonetheless welcomes the increase in the number of inspections and is in favour of further intensifying them. It believes that although human and material resources need to be increased, it is equally important that measures be taken to ensure that inspectors are able to interpret the law properly because of its complexity and shortcomings, which are frequently pointed out. The CGT believes that it ought to be possible for the unions to follow inspectors’ work more closely and to have better access to information on the inspectorate’s current activities and relevant forums for tripartite dialogue.

The Committee observes that, for the most part, the organizations’ comments concern matters that were already examined at the 1998, 1999 and 2003 sessions.

1. Article 3, paragraph 1(a) and (b), of the Convention. Supervisory and preventive functions of the labour inspectorate. The Committee notes with interest the information in the annual inspection reports showing that the provision of information and technical advisory services evolved significantly in the period from 2001 to 2004, particularly in “Citizens’ Centres”. It also notes the increase in the total number of inspections during the same period and points out that, as it said in paragraph 85 of its General Survey of 2006 on labour inspection, the abovementioned provision gives the same importance to information and advice to employers and workers concerning the most effective means of complying with the relevant legal provisions, the two functions being inextricably linked and representing the two key aspects of labour inspection. The Committee would be grateful if the Government would continue to provide information on developments in the advisory and informative role played by the labour inspectorate.

2. Article 5(b). Cooperation with employers and workers. Further to its previous observation, in which it noted the signing of an agreement in February 2001 with the social partners of an agreement on working conditions, occupational health and safety and occupational risk control, the Committee would be grateful if the Government would provide detailed information on progress in the activities carried out under the agreement. Please also provide information on any new measures taken or envisaged to encourage cooperation and dialogue between the inspection services and the social partners, and state the areas covered by such cooperation.

3. Articles 7, paragraph 3, 10 and 11. Strengthening of the staff of the inspection service, and expansion of its areas of action and material resources. The Committee notes with interest, the establishment in 2004 of the National School for Labour Inspection, Studies and Training, the aim of which is to develop the professional skills needed for inspection activities. It also notes that, according to the Government, the annual continuous training programme for inspectors is set according to needs and priorities. Furthermore, in 2004, 34 inspectors, five of whom were assigned to the Azores regional inspectorate, underwent training in order to graduate from labour inspector to technical inspector which consisted of 90 hours of theory and 40 hours of practical training over a two-month period. On the subject of continuous training for labour inspectors, the Committee notes that between 2002 and 2005, various courses and seminars were held on subjects such as the drafting of activity reports on occupational safety and health; chemical and biological risks; the Labour Code and its regulations; safety of machinery; prevention of risks; document management; and labour law.

With regard to the strength of the labour inspectorate, the Committee notes that of the 538 posts budgeted for inspectors for the years 2001-05, only 261 were filled in 2001, 257 in 2002, 294 in 2003, 280 in 2004 and 266 in 2005. The Committee requests the Government to explain why the number of serving inspectors dropped between 2003 and 2005 and to provide information on any measures taken or envisaged to fill the vacant posts in the inspectorate.

4. Article 18. Appropriate and effectively applied penalties. The Committee notes the system of penalties established in articles 614-689 of the Labour Code, the various court decisions regarding the imposition of penalties for violations of the legal provisions enforceable by labour inspectors and the statistics on offences committed and penalties imposed from 2002 to 2005. However, the Committee would be grateful if the Government would give any views it deems relevant on how it ensures that labour inspectors fulfil their ethical obligations in performing their enforcement duties. Please also provide information on any measures taken to ensure that inspection activities, legal actions brought and sanctions imposed are given sufficient publicity to strengthen the credibility of the profession.

The Committee is addressing a request directly to the Government on other matters.