2008 Annual Survey of violations of trade union rights - Portugal
|Publisher||International Trade Union Confederation|
|Publication Date||20 November 2008|
|Cite as||International Trade Union Confederation, 2008 Annual Survey of violations of trade union rights - Portugal, 20 November 2008, available at: http://www.refworld.org/docid/4c52ca732d.html [accessed 27 May 2016]|
ILO Core Conventions Ratified: 29 – 87 – 98 – 100 – 105 – 111 – 138 – 182
The law protects trade union rights, but in practice collective bargaining and trade union meetings are often hampered.
Trade union rights in law
The Constitution and the 2003 Labour Code recognise freedom of association. All workers, with the exception of members of the armed forces and some police forces, are allowed to form and join trade unions. The government has stated the need to encourage trade union participation amongst migrant workers.
In June the government presented the tripartite Standing Commission for Social Concertation with a white paper on labour legislation reform – in line with the "flexicurity" concept (combining labour flexibility with job security). Whether it affects the right to organise and collective bargaining in the positive way remains to be seen.
Collective bargaining: Trade unions have the right to bargain collectively. While the 2003 Labour Code did not introduce any rules that would violate ILO standards, a few provisions did affect the balance of collective bargaining. Namely, according to the Code, collective agreements can supersede legislation, both when the agreement is more favourable for workers and when it is less favourable. Trade unions hope that this article will be revised during the upcoming Labour Code reform. The Code also stipulates that if a collective agreement is not renewed, it can cease to have legal effect.
Public service collective bargaining is defined as "appraisal and discussion" between trade unions and public administration with the view to arriving at consensus. These negotiations do not result in legally binding collective agreements. The Public Service Collective Bargaining Act restricts the scope of bargaining to pay and pay-related issues although, in July, an agreement on performance appraisal was signed. The law explicitly excludes from collective bargaining issues relating to the structure, assigned tasks and competence of public administration.
Strike and arbitration: The right to strike is guaranteed, and procedures for calling a strike are reasonable. Once a trade union gives a strike notice, the employer is not allowed to hire additional labour to replace strikers. Contracting outside companies to do the work of striking workers is also prohibited. Wildcat strikes are prohibited and can result in workers' liability for damages. Compulsory arbitration is viewed as a mechanism of exceptional nature to be applied under strict conditions. The number of workers affected, the relevance of the dispute in terms of workers' protection, and the potential social and economic impacts of the conflict are taken into consideration. Arbitration can also be imposed to determine minimum services.
Trade union meetings: Trade unions have the right to access the work place. A 48-hours notice is required to organise a trade union meeting on the company premises, and a six-hour notice should be given if a trade union representative not working in the company is going to be present. Trade union meetings during working hours are limited to 15 hours per year, but for workers these hours are considered as working time.
Trade union rights in practice and Violations in 2007
Background: Several large-scale strikes took place throughout the year, including a strike for all public sector unions in November to protest the government's unilateral decision on the disappointingly low wage increase.
Collective bargaining hampered: While collective bargaining in the public sector is often reduced to mere formal consultations, private employers often try to sabotage collective bargaining. Employers sometimes attempt to prevent the holding of trade union meetings. However, most of the time this is resolved by negotiations.
SATA breaks the law to suppress a strike: On 1-3 June the National Trade Union for the Flying Crew (SNPVAC, affiliated to the ITUC member confederation UGT) organised a strike in the airline company "SATA Internacional". Having received a SNPVAC strike notice, the employer immediately hired replacement workers and other companies, in complete disregard of the Labour Code. Moreover, some of the replacement workers did not have the mandatory Crew Certificate issued by the National Institute of Civil Aviation. During the strike, people with less than a year of experience were appointed as responsible on board of a flight, crew members did not wear uniforms, and there were other incidents that did not only break aviation rules, but could have directly jeopardised passengers' safety. The director of the Lisbon Airport did not allow SNPVAC to picket throughout the airport in support of the strike.