Observation (CEACR) - adoptée 2007, publiée 97ème session CIT (2008)

The Committee notes the Government’s report for the period ending 31 May 2007 in reply to its previous comments; the annual report on the work of the General Labour Inspectorate for 2006; the report on the application of the Convention; the labour inspection activity plan for the autonomous region of the Azores; and also additional information supplied by the General Labour Inspectorate with regard to the application of the Convention. It also notes that Legislative Decree No. 211/2006 issuing the Organic Act of the Ministry of Labour and Social Solidarity; Regional Legislative Decree No. 19/2006 on the application of the Labour Code and its implementing regulations in the autonomous region of the Azores; and Regulatory Decree No. 2/2007/A issuing the Organic Act of the Regional Secretariat for Education and Science (SREC).

The Committee notes the comments regarding the application of the Convention, attached to the Government’s report, originating from the Confederation of Portuguese Industry (CIP), the Confederation of Trade and Services of Portugal (CCP), the Portuguese Confederation of Tourism (CTP), the General Confederation of Portuguese Workers (CGTP-IN) and the General Union of Workers (UGT).

1. Article 3, paragraph 1(a) and (b), and Articles 17 and 18 of the Convention. Distribution of inspection activities between the objectives of prevention and enforcement. The employers’ organizations (CIP, CTP and CCP) advocate redirection by the labour inspectorate of its activities to place the focus on its preventive role instead of giving priority to prosecuting employers who have committed violations. These organizations call in particular for actions to raise awareness of social values and provide information and advice of a pedagogical nature or for the development of a policy of prevention, education and awareness raising for all players in the labour market, not only for employers and workers.

The opinions of the workers’ organizations diverge on this point. The CGTP-IN considers that the emphasis placed on information and pedagogical activities by the labour inspectorate is detrimental to enforcement activities. The result is a climate of impunity which reduces the effectiveness of the labour legislation. In the opinion of the CGTP-IN, the labour inspectorate is exceeding its competence by publishing an interpretation of the provisions of the Labour Code on its web site. Some of these entries, drawn up on the basis of specific cases (an enterprise, activity or branch of activity covered by a collective labour agreement), have no general applicability and may be a source of errors in the evaluation of situations. The UGT considers that the enforcement function should preferably target certain violations, such as those relating to the keeping of registers of temporary employment contracts, bogus self-employment, hours of work, overtime and overtime payments. The UGT also considers that labour inspectors should receive training aimed at improving their understanding of the legislation in the light of its complexity and the gaps it contains.

The Committee notes that, according to the information supplied by the Government, measures have been taken to remedy some of the deficiencies noted by the employers’ and workers’ organizations, particularly as regards the adaptation of inspection activities to the needs expressed. Accordingly, in consultation with the regional services and the social partners, the General Labour Inspectorate has decided to launch systematic inspection operations targeting the sensitive areas of labour legislation mentioned above and also activities involving a high risk of industrial accidents. The Government also states that the inspectorate is also seeking to develop parallel inspection and advisory activities in the area of conditions of work, as provided for by the Convention. Penalties are imposed on employers in the case of violations which are considered serious or very serious. In this respect, the Committee notes with interest the communication of decisions issued by the courts with regard to employers who are guilty of violations of the legal provisions covered by the Convention and with regard to rest days, atypical work, and employment contracts.

In response to the criticism voiced by the CGTP-IN concerning the risk of misinterpretations of the explanatory notes posted on the web site of the General Labour Inspectorate, the Government emphasizes that, to prevent any error of interpretation, users’ attention is always drawn to cases involving an issue that has to be settled pursuant to a collective labour agreement. It considers that the labour inspectorate promotes conditions of work by supplying technical information and advice to employers, workers or their representatives regarding the best way to apply the legislation and by imposing penalties on those guilty of violations. In this respect, the Committee notes with interest, in the annual inspection report for 2006 and the additional information sent subsequently by the labour inspectorate, the statements referring to a significant development of inspection activities and the distribution thereof according to the subject covered. The increase in the number of users of services provided by the inspectorate, whether at the “Citizens’ Centres” or inspection offices or on the web site of the General Labour Inspectorate (http://www.igt.gov.pt), which has a special section for frequently asked questions, testifies to the growing interest in the services provided.

Finally, the Committee notes with interest that the General Labour Inspectorate publicizes its activities on a broad scale through participation in numerous events such as conferences and seminars, through television programmes and training and educational activities on health and safety undertaken in educational establishments, and through the distribution of books, brochures and leaflets.

The Committee would be grateful if the Government would send to the Office its assessment of the accuracy of the information posted on the Inspectorate’s web site. The Government is also asked to continue supplying information on the measures taken to promote activities of a pedagogical nature while continuing to prosecute in an effective manner, i.e. with a dissuasive effect, those responsible for violations of the legislation concerning conditions of work and the protection of workers.

2. Articles 10 and 16. Staff numbers of the labour inspection services and inspection visits. The Committee notes that the issue of numbers of labour inspectors in relation to the requirements to be covered is raised by both employers’ and workers’ organizations. Although the CIP welcomes the increase in inspection visits in recent years and appears to attribute the reduction in child labour and industrial accidents to this heightened presence in enterprises, the CTP hopes for an increase in the numbers of labour inspectors and their resources to enable the implementation of a cross-cutting prevention policy and observes that, according to recent data, the national ratio of inspectors to workers is particularly low. The CGTP-IN notices a continuing reduction in the number of serving inspectors in relation to the posts provided for in the budget, pointing out that out of 538 posts provided for, only 200 are actually filled at present, with a consequent decrease in the number of inspection visits. This view is echoed by the UGT, which emphasizes the need to reinforce the staff and the material resources of the labour inspectorate.

The Committee observes that the Government has not supplied the information which it requested in its previous comments concerning the reasons for the continuing decrease in the number of inspectors. However, it notes that 36 inspectors commenced their duties in May 2007 after completing their training and that it is planned to organize a competition to recruit 100 additional inspectors. The Committee would be grateful if the Government would continue to keep the Office informed of the measures taken to reinforce the number and qualifications of labour inspection staff.

3. Article 5(b). Promoting collaboration between the inspection services and the employers and workers. With reference to its previous comments, the Committee notes with interest that a national action plan for prevention (PNAP), in the context of the National Council for Occupational Safety and Health (CNHST), has been drawn up pursuant to Resolution No. 104/2004 of the Council of Ministers. This plan contains the following components:

–           raising the awareness of employers, workers and occupational health physicians and nurses;

–           execution of national, regional and local occupational risk prevention programmes;

–           training of the social partners in the field of occupational safety and health;

–           improving the statistics of industrial accidents and cases of occupational disease.

The Committee also notes with interest that it is planned, in the context of a plan and a programme on growth and employment (2005–08), drawn up in consultation with the social partners within the Standing Committee for Social Cooperation, to take steps, through social dialogue to improve conditions of work and reconcile the rights of workers with the capacity of enterprises for adaptation. These measures include prevention services in enterprises, in particular reinforcing inspection activities in high-risk areas of work. The Committee would be grateful if the Government would keep the Office informed of any developments in this regard.

The Committee is raising a number of other points in a direct request to the Government.