TRADE UNION FREEDOM/RIGHT TO ORGANIZE
TRADE UNION FREEDOM/RIGHT TO ORGANIZE
The Portuguese Constitution enshrines trade union freedom in fairly broad terms, adopting the conceptualization recognized in all countries with a pluralist democracy of the West European model (and also enshrined in the Universal Declaration of Human Rights and ILO Convention No. 87), as a fundamental right to organize enjoyed by workers as individual persons. It is therefore a particular manifestation of the fundamental freedom of association. This constitutional provision marked a rejection of the conceptualization set out in the 1975 Trade Union Act by the Military Council of the Revolution, which had imposed a system of union monopoly embodying a concept of collective trade union freedom viewed in terms of class and not individuals. The content of trade union freedom divides into a series of corollaries: the positive freedom to form a union or join an existing one (see below, Freedom to form trade unions, Freedom to join a union ), freedom not to join any or a particular union (see "negative" trade union freedom ), freedom in determining the internal organization and regulation of a union (see below, Freedom of internal union organization ), the right to bargain , the right to organize at enterprise level (see trade union activity in the workplace ), the right to participate and the right to strike . The legal rules regulating trade union freedom establish a series of constitutional principles to which its exercise is subject (see below, Principle of specific purpose, Principle of democratic organization and government, and Principle of independence ).
Freedom to form trade unions The (positive) individual right to organize is exercised through the free formation of trade unions or the right as an individual to join an existing union. Article 55(2) of the Constitution makes express provision for them. It follows that exercise of the freedom to form unions may not be made subject to government intervention: powers of control over the legality of their formation (and functioning) lie exclusively with the courts. The procedure for forming a union was regulated in considerable detail in the 1975 Trade Union Act (mainly Articles 8 and 15). These rules were based on what is referred to as the "unitary principle", i.e . the system of union monopoly or single unions, with two important consequences. Firstly, they prohibited the creation of any union that was intended to represent workers whose category was already represented by an existing union. Secondly, the rules stipulated that the decision to create a union should be taken at a "founding assembly" (assembleia constituinte) which was open to all potentially eligible members, and which had to be attended by at least 10 per cent. or 2,000 of these workers, the decision being adopted by majority vote in a secret ballot. For the formation of a regional or industrial federation, the founding assembly could function and adopt a valid decision only if it was attended by at least one third of all the unions concerned, and the decision had to be adopted by unions representing the majority of the members of those unions to be covered. For the formation of a single general confederation, the decision had to be adopted by unions representing the majority of unionized workers throughout the country, at a national union congress convened by unions (with revised rule-books) representing the majority of unionized workers.
These provisions of the 1975 Act were unequivocally repealed by the new Constitution of 1976 (and also by ILO Convention No. 87, ratified by Law No. 45/77). In order to make this repeal more widely understood and more clear-cut, Decree-Law No. 773/76 expressly declared various of the Act's provisions to be repealed, but without mentioning all the provisions which had, thereby, been effectively repealed. Some authors still refuse to recognize the fact of constitutional repeal, although the courts have persistently upheld it in their rulings. It is perfectly clear that the above formation procedure was logically and intimately linked with the system of a single union for each category that was enshrined in the Act. Given that this unitary concept has been repealed, the associated formation procedure has to be considered likewise repealed. If it is to be in harmony with the concept of trade union freedom as established in ILO Convention No. 87, the act of creating a union cannot be tied to a founding assembly which is open to an entire occupational category: it must rest solely on agreement between the minimum number of workers required to form a union in cases where national legislation so provides.
As regards the system of registration and acquisition of legal personality (see legal status of trade unions and employers' associations ), another of the 1975 Act's provisions whose compatibility with the present constitutional rules is very doubtful is that contained in Article 10(5), prohibiting unions from functioning until their rule-books have been published in the official Boletim do Trabalho e Emprego . Rooted as it is in a tradition of legal regulation and a concept of single unions subjected to control, this provision is questionable. Strict reasoning makes it impossible to deny unions their identity as de facto associations, an identity which is recognized in many other countries. There are, in fact, no known examples in Portugal of trade unions (or employers' associations) which have refused to register and so deliberately opted for status as an association without legal personality.
Workers are free to decide the coverage of any union they form, without any obstruction or limitation from the State or other existing unions (see trade union category ). This freedom means, in practice, that it is possible for competing unions to exist (union pluralism). At another level, freedom of association is also granted to unions themselves, which may therefore join together freely to form regional federations, industry-based federations and confederations (Article 55(2a) of the Constitution, where the right to form trade union organizations is referred to all levels). Unions at any level also have the right to establish relationships with or join international trade union organizations (Article 55(5) of the Constitution, which thereby repealed the former prohibition of international affiliation by the 1975 legislation). Constitutionally, exercise of trade union freedom is guaranteed to all workers, without discrimination, whereas Article 2(a) of the 1975 Trade Union Act restricts it to those in a position of legal subordination. This legal restriction must be interpreted with care; otherwise, it may call into question the legitimacy of, for example, unions of agricultural workers or self-employed workers ("trabalhadores artesanais"), or make it difficult for unemployed workers or first-time job-seekers to belong to a union (see also trade union freedom of public servants ).
Freedom to join a union: Freedom to join a union has both a positive and a negative aspect, as established in Article 55(2b) of the Constitution. Positively, the 1975 Trade Union Act states that workers shall have the right to join the union which represents the relevant category (see trade union category ) in the area of their activity (Article 16(1)). Prior to the present Constitution, this right had a specific scope since the principle of union monopoly (a single union for each category) was then in force. Nowadays, the right to join a union must be interpreted in the context of a new and different legal system in which the above constitutional provision guarantees a freedom, not a right, to join a union. This freedom must be exercised in harmony with other personal freedoms, notably those relating to the formation, organization and government of unions. Accordingly, the right to join a union as stated in Article 16 of the Act has a narrower scope, because it conflicts with the freedom of unions to admit or refuse to admit new members as laid down in their particular rule-books. However, even recently the Supreme Court of Justice, ruling on a controversial case in which the airline pilots' union had refused to admit a group of ten applicants for membership, decided that the union was obliged to admit them since membership may not be dependent on a discretionary act on the part of the union. (In the present authors' view this decision is not correct, since it rests on recognition of a true right to join which may be asserted against a union, and as such is incompatible with recognition of trade union freedom proper.)
The 1975 Act limits freedom to join a union in stipulating that no worker may belong to more than one union in respect of any given occupation or activity, and may join different unions only insofar as they correspond to different occupations which he or she actually practises (Article 16(2)). "Negative" trade union freedom (the fact that joining a union is not compulsory) is established by Article 55(2b) of the Constitution as mentioned above, together with the corresponding right not to pay membership dues to a union to which a worker does not belong (see trade union contributions ). A worker's right freely to leave the union to which he or she belongs is expressly stated in Article 16(4) of the 1975 Act (subject to notification in writing and payment of three months' contributions). A further expression of the right not to join a union consists in the express prohibition, in Article 37 of the Act, of union membership (closed shop) clauses .
Freedom of internal union organization The Constitution expressly establishes (Article 55(2c)) the freedom of unions to organize and regulate themselves internally. Article 13 of the 1975 Trade Union Act provides similarly. This freedom is, however, limited by the requirements imposed in Article 14 of the Act regarding the mandatory content of a union's rule-book. It must regulate the following: the union's name and head office address; its coverage in terms of personnel, branch of activity and geographical area; its objectives and duration (in cases where the union is not being formed for an indefinite period); rules on granting and withdrawing membership, and members' rights and obligations; disciplinary code; composition, election and functioning of the general assembly and governing bodies; financial administration, budget and accounts system; creation and functioning of branches and other forms of decentralized organization; procedure for amending the rule-book; and winding-up, disbandment and consequent liquidation and distribution of assets.
Principle of independence For reasons borne out by experience, namely, the prominent role played by unions, their influence in society and their frequent links with other social, ideological and party-political forces, it is generally held that unions must be independent. Article 55(4) of the Constitution stipulates that unions must be independent of employers, the State, religious denominations, political parties and other political associations, and that the law must provide adequate guarantees of this independence. Prior to the Constitution, Article 6 of the 1975 Trade Union Act prohibited employers and employers' associations or any other non-union organizations from promoting the formation of unions or maintaining or subsidizing them by whatever means, and from interfering in their organization and government in any way. In the terms proclaimed in the Constitution, this independence signifies the prohibition of any interference, by those mentioned, in the organization, government and financing of unions. Also, membership of a union's governing body is incompatible with responsible office in a political party or religious institution. Although the Constitution charges the law with the task of providing adequate guarantees of union independence, such regulation is as yet inadequate (except as regards the protection of union officials against anti-union behaviour on the part of employers). Furthermore, no effective procedure exists for monitoring the system. Hence the frequent occurrence of blatant violations, without incurring consequences of any kind, as in the case of union officials who also hold parliamentary or party-political office.
Principle of democratic organization and government Article 55(3) of the Constitution stipulates that unions must be run in accordance with the principles of democratic organization and democratic government, not subject to any form of authorization or official approval, and founded in the active participation of workers in all aspects of union activity. Although it distinguishes between organization and government, the Constitution bases both on free elections and participation. Consequently, union rule-books cannot freely establish any form of organization or functioning but must reflect the principles so stipulated. Expressions of the legal guarantees of democratic principle include the requirement for the regular election of union governing bodies by secret ballot (Article 55(3) of the Constitution and Article 13 of the 1975 Trade Union Act), the requirement to make provision for the right to form different political factions within unions imposed by Article 55(2e) of the Constitution (see right to political factions in trade unions ), and other stipulations laid down in the 1975 Act such as rules on elections, the term of office of union officials, general assemblies and the removal of officials from office and procedures for the election of workplace union representatives by direct secret ballot.
Principle of specific purpose Purposive principle (referred to as "princípio teleológico") signifying that all aspects of the organization and activity of unions must be appropriate to pursuance of their intended objectives. It is a general principle, applicable to all associations without exception, which limits their legal capacity (Article 160, Civil Code) and is seen as the raison d'être of a collective person. In the case of unions, the Constitution states that trade union freedom is granted to workers "for the purpose of defending their rights and interests" (Articles 55, 56), while the 1975 Trade Union Act more explicitly guarantees workers the right to organize "for the purpose of defending and promoting their social and employment-related interests" (Article 3) and defines a trade union as a permanent association of workers for the purpose of defending and promoting their social and employment-related interests (Article 2(b)). Thus, the interests whose protection is recognized as the specific purpose of a union are confined to social and employment-related interests, and do not embrace all or any interests of another kind. However, this still leaves a wide margin of imprecision regarding those interests which unions may legally pursue. It has been union practice to give them a very broad interpretation, mainly in connection with exercising the right to strike. Nevertheless, the specific objectives of unions are certainly not chosen freely by workers.
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.