Rapport définitif - Rapport No. 337, Juin 2005

1202. The complaint is contained in a communication from the Union of Independent Trade Unions (USI) dated 10 March 2004.

1. 1203. The Government sent its observations in a communication dated 9 February 2005.
2. 1204. Portugal has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 1205. In its communication of 10 March 2004, the Union of Independent Trade Unions (USI) states that it currently brings together eight trade union organizations from various sectors of the economy (banking, energy, telecommunications, healthcare, public works and railways) across the whole country, representing some 50,000 workers. The USI states that it constitutes a confederation which is significantly representative within the national arena.
2. 1206. The USI objects to its exclusion from the Economic and Social Council (CES) and the Permanent Commission for Social Partnership (CPCS), which are national bodies for social partnership. The complainant states that act no. 108/91 of 17 August expressly provides for the presence of three representatives of the General Confederation of Portuguese Workers (CGTP-IN) and three representatives of the General Union of Workers (UGT) on the CPCS, and states that eight representatives of representative workers’ organizations shall participate in the CES.
3. 1207. The USI states that it has attempted, through consultations with all the parliamentary groups, to have Act No. 108/91 of 17 August amended to delete the express reference to the CGTP-IN and the UGT, allowing other confederations access to the Permanent Commission for Social Partnership (CPCS), but that it has not succeeded.
4. 1208. Specifically, the USI states the following with regard to the content of Act No. 108/91 of 17 August: (1) section 3.1(d) states that eight representatives of representative workers’ organizations, appointed by their respective confederations, which for this purpose shall be selected by the chairman of the CES, shall be members of the CES; (2) section 6.1(c) states that the CPCS shall be one of the constituent bodies of the CES and that its mandate shall be to promote dialogue and cooperation between the social partners and to contribute to developing policies on prices and incomes, employment and vocational training; and (3) section 6.2(ii) and (iii) states that the CPCS shall include three management-level representatives of the CGTP-IN, one of whom shall be the coordinator, and three management-level representatives of the UGT, including its general secretary.
5. 1209. Lastly, the complainant states that, bearing in mind the fact that it is a representative trade union confederation, it is entitled to be included in the CES and CPCS, but that this is prevented by Act No. 108/91 in the case of the CPCS and, in the case of the CES, by a lack of invitation from the chairman. According to the USI, this exclusion violates freedom of association and involves a restriction which contravenes the provisions of Convention No. 87.
6. B. The Government’s reply
7. 1210. In its communication of 24 January 2005, the Government states, with regard to membership of the Permanent Commission for Social Partnership (CPCS), that the complainant’s statement does not reflect the provisions of current legislation. In fact, Act No. 12/2003 of 20 May amended section 9.2 of Act No. 108/91 of 17 August and established the following composition for the CPCS: four Government members appointed by the Prime Minister’s office; two management-level representatives of the General Confederation of Portuguese Workers (CGTP-IN); two management-level representatives of the General Union of Workers (UGT); the president of the Confederation of Portuguese Agriculture Workers; the president of the Confederation of Commerce and Services of Portugal; the president of the Portuguese Confederation of Industry; and the president of the Portuguese Confederation of Tourism.
8. 1211. According to the Government, no guarantee of participation in social partnership bodies is included in Convention No. 87.
9. 1212. With regard to the composition of the Economic and Social Council (CES), the Government states that, among others, there are eight representatives of representative workers’ organizations on the Council. These representatives are appointed by representatives of the CPCS, and the posts are given to four representatives of the CGTP-IN and four representatives of the UGT.
10. 1213. The Government states that the selection of trade union confederations to be represented on the CPCS, and consequently the CES, is based on their respective representativity. According to the Government, the CGTP-IN and the UGT are the most representative confederations within the Portuguese trade union structure. The Government states that the USI only represents trade unions, and not federations or unions thereof.
11. 1214. The mandate of the CES and CPCS covers the whole country and all sectors of activity. The generic mandate of the CES is determined by the Constitution and Act No. 108/91 of 17 August. It exists for consultation and cooperation in the area of economic and social policy and participates in drawing up proposals for socio-economic development. The CPCS is responsible for promoting dialogue and cooperation between the social partners and contributing to developing policies on prices and incomes, employment and vocational training. Bearing in the mandates of these two institutions, one of the criteria for judging the representativity of workers’ organizations for the purpose of participation must be linked to how much of the country and which sectors of activity they cover.
12. 1215. The Government states that national legislation does not expressly mention the objective criteria used to determine the representativity of the workers’ and employers’ organizations which are members of the CES or CPCS. Despite this, the Government states that there are objective criteria which allow the representativity of the USI to be assessed and compared with that of the CGTP-IN and the UGT. The Government states that: (1) the CGTP represents 45.6 per cent of the Portuguese trade union structure, the UGT 14.2 per cent and the USI 2.6 per cent. The remaining trade union associations do not belong to representative confederations that would enable them to be represented on the CES and CPCS; (2) according to the information available, the USI represents some 18,120 workers. The CGTP and UGT have not reported the number of workers whom they represent, but the area of the country which they cover can be determined by taking into account the number of agreements concluded by these organizations; (3) the unions which constitute the USI are made up of workers in the sectors of gas, water and electricity production and distribution, transport, storage and communications, financial activities, healthcare (administrative workers) and social action; (4) between 1997 and 2004, 2,712 collective agreements were concluded: 1,174 by associations belonging to the CGTP-IN, 1,028 by associations belonging to the UGT, 385 by associations belonging to both the CGTP-IN and the UGT, 63 by associations belonging to the USI and 62 by other associations; (5) all workers’ organizations are entitled to participate in preparing labour legislation at the public consultation stage, whether or not they are represented on the CES and CPCS. The CGTP-IN has done so on 14 occasions, the UGT on 11 and the USI on two; (6) with regard to the level of national coverage, according to their statutes, the USI and its member unions cover the whole country, the CGTP-IN covers the whole country and also has several member unions specifically covering the autonomous regions of the Azores and Madeira, and the UGT covers the whole country and has several member unions which cover the autonomous region of the Azores; (7) with regard to sectors of activity covered, the USI only covers gas, water and electricity production and distribution, transport, storage and communications, financial activities with the exception of insurance, and administrative workers in the healthcare sector. The CGTP-IN and UGT cover all sectors of activity.
13. 1216. Lastly, the Government states that, in accordance with the principles of the Committee on Freedom of Association, Portuguese legislation guarantees less representative organizations many rights to defend their members (for example, concluding collective agreements, carrying out union activities at enterprises, taking strike action, participating in the preparation of labour legislation, etc.).

C. The Committee’s conclusions

1. 1217. The Committee observes that the complainant alleges that, although it is a significantly representative confederation at national level, it is prevented from participating in the Economic and Social Council (CES) and the Permanent Commission for Social Partnership (CPCS). The Committee further observes that the complainant objects to the provisions of Act No. 108/91 of 17 August which mention by name the trade union organizations which are members of these bodies.
2. 1218. The Committee notes the Government’s statements that: (1) the selection of the trade union confederations CGTP-IN and UGT to be represented on the CPCS, and consequently the CES, is based on their respective representativity; (2) the CGTP-IN and the UGT are the most representative confederations within the Portuguese trade union structure (the Government includes information in this regard on the number of members, collective agreements signed, area of the country and sectors of activity covered, etc.); (3) national legislation does not expressly mention the objective criteria used to determine the representativity of the workers’ and employers’ organizations which are members of the CES or CPCS, but despite this there are objective criteria which allow the representativity of the USI to be assessed and compared with that of the CGTP-IN and the UGT; and (4) Portuguese legislation guarantees less representative organizations many rights to defend their members (for example, concluding collective agreements, carrying out union activities at enterprises, taking strike action, participating in the preparation of labour legislation, etc.). The Committee also notes that, according to the Government, the CGTP-IN represents 45.6 per cent of the Portuguese trade union structure, the UGT 14.2 per cent and the USI 2.6 per cent.
3. 1219. Firstly, the Committee notes that, according to the information submitted by the Government, the trade union organizations CGTP-IN and UGT are more representative than the USI (although the Government does not give the number of workers affiliated to the CGTP-IN or UGT, the number of agreements concluded by these organizations is markedly higher than those concluded by the USI). In this regard, the Committee recalls that “the mere fact that the law of a country draws a distinction between the most representative trade union organizations and other trade union organizations is not in itself a matter for criticism. Such a distinction, however, should not result in the most representative organizations being granted privileges extending beyond that of priority in representation, on the ground of their having the largest membership, for such purposes as collective bargaining or consultation by governments, or for the purpose of nominating delegates to international bodies. In other words, this distinction should not have the effect of depriving trade union organizations that are not recognized as being among the most representative of the essential means for defending the occupational interests of their members, for organizing their administration and activities and formulating their programmes, as provided for in Convention No. 87” [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 309]. The Committee therefore considers that the selection in practice of the CGTP-IN and the UGT to be members of the social consultation and cooperation bodies (CES and CPCS) as the most representative organizations, according to the information and figures given by the Government, does not violate the principles of freedom of association. The Committee further considers that neither does the exclusion of the USI from these bodies violate these principles, given its low representativity.
4. 1220. However, bearing in mind the Government’s statement that national legislation does not expressly mention the objective criteria used to determine the representativity of workers’ and employers’ organizations, the Committee considers that this could give rise to a conflict situation in the future if a workers’ organization achieves the same or higher representativity as that enjoyed by the CGTP-IN or the UGT. In this regard, the Committee recalls that it has underlined, on numerous occasions, that pre-established, precise and objective criteria for the determination of the representativity of workers’ and employers’ organizations should exist in the legislation and such a determination should not be left to the discretion of governments [see Digest, op. cit., para. 315]. This being the case, the Committee requests the Government to determine, in consultation with the most representative workers’ and employers’ organizations, predetermined, precise and objective criteria to evaluate the representativity and independence of workers’ and employers’ organizations, and that the legislation is modified so that there is no mention by name of the workers’ organizations (CGTP-IN and UGT) which shall be members of the CES and CPCS, restricting itself to stating the above criteria, in order to enable representativity to be re-examined if necessary.
5. 1221. The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspects of the case.