STRIKE (ESSENTIAL SERVICES)
| PORTUGAL |
| GREVE (SERVIçOS ESSENCIAIS) STRIKE (ESSENTIAL SERVICES) |
In principle, under Portuguese law the right to strike is the same in enterprises providing essential services to the public as in the private sector. However, the Strike Act establishes specified limits to its exercise resulting from the possibility of this right coming into conflict with other rights. For example, the right to strike may run counter to the right to life (as with an all-out strike by doctors) or to the vital needs of the community (strikes in essential services). In these cases, it is necessary to resolve the latent conflict between the right to strike and safeguarding the legitimate interests of the community at large. The problem is addressed by Article 8 of the Act, which makes the unions and the employees responsible for maintaining the minimum level of services essential to meet the indispensable needs of society. This represents a limitation of the right to strike and is a solution whereby the continuity of essential public services may be guaranteed without prejudice to recognition of the right to strike. Although no definition was given of what should be understood by "indispensable needs of society", the legislators added a list of sectors which, by way of example, are regarded as engaging in activities intended to meet these needs: a) postal services and telecommunications; b) medical, hospital and pharmacy services; c) public health, including funeral services; d) energy and mining services, including fuel supplies; e) water supply; f) firefighting services; and g) passenger transport and the transport of livestock and perishable foodstuffs and goods essential to the national economy. In practice, the major strikes involving problems of maintaining minimum services have been in the public transport sector and in the production and distribution of energy (gas and electricity) and water.
In recent years a series of problems have arisen in connection with the application of Article 8. The points at issue are: who is authorized to define the services which must continue to be provided during a strike; who should select the particular employees needed to perform these services; and what legal rules govern the performance of work in providing minimum services. Starting with the last-mentioned problem, current legal opinion sees the employer as possessing the authority to direct the work and as being under an obligation to pay the employees who perform the minimum services. As regards defining the services which must be performed and selecting the employees to perform them, the position adopted by the legislators in the most recent revision of the Strike Act in 1992 (taking the Italian legislation as their point of reference) consisted in the following provisions. Minimum services may, in the first instance, be defined by collective agreement or by agreement with the employee representatives. If no such agreement exists before advance notice of a strike is issued, the Ministry of Employment and Social Security convenes the employees' and employers' representatives with a view to negotiating an agreement on the measures necessary to ensure these services. If this is not achieved by the fifth day following advance notice of a proposed strike, the definition of the services and the measures to ensure them are decided by the relevant Ministers. It is also stipulated that the employee representatives must select the particular employees at least 48 hours before the start of the strike; should they fail to do so, the employer makes this selection.
It frequently happens that the unions refuse to co-operate in the provision of these essential services. When this is the case the strike is unlawful, or at least the participation in the strike of those employees who have been assigned to perform the services in question is regarded as unlawful and they become subject to the legal rules governing unlawful strikes . However, since in these cases non-fulfilment of the obligation to perform minimum services puts vital interests of the community at stake, the legislators provided for the application of special measures to ensure that the public needs affected are met, establishing that failure to fulfil the obligations deriving from Article 8 makes it legitimate for the Government to decree the civil conscription of strikers.
Please note: the European industrial relations glossaries were compiled between 1991 and 2003 and are not updated. For current material see the European industrial relations dictionary.