Industrial action and disputes in Portugal

In Portugal, strikes are the most widely used form of industrial action by far. The right to strike has been guaranteed by the Constitution since 1976, which establishes that the workers themselves have the responsibility of defining the scope of the interests to be defended by means of strike action, and that this scope may not be restricted by the law. In parallel with establishing the right to strike, it prohibits the use of lockouts. Other forms of industrial dispute, such as sit-ins and other disruptive actions, were relevant during the revolutionary period (1974–1975) and its aftermath, but they do not occur any longer. An exception may be when workers at a factory that is closing try to stop the withdrawal of equipment and material from the establishment in order to avoid their sale before the company has paid its debt to the dismissed workforce.

Different forms of industrial action between 2010 and 2019

Note: * Percentage of private sector establishments reporting any form of industrial action during the indicated period.

Source: European Company Survey 2019.

Developments in industrial actions, 2012–2021

Sources: GEE/MTSSS (2014a, 2014b), GEP/MTSSS (2015, 2016, 2017, 2018, 2019a, 2021a, 2022a, 2022b).

Collective dispute resolution mechanisms

The Labour Code regulates the following collective dispute resolution mechanisms.

• Conciliation and mediation (Labour Code, Articles 523–528): Conciliation may be initiated at the request of one or both parties of the conflict. The process is normally carried out at the responsible service of the MTSSS. The parties are obliged to attend the conciliation meetings, but the success of the process depends entirely on their will. If the conciliation fails, it may be transformed into mediation. Mediation may be initiated at the request of one or both parties of the conflict. The mediator is appointed by the MTSSS. He or she presents a compromise for the resolution of the conflict. The parties are obliged to attend the mediation meetings, but the success of the process depends entirely on their will.

• Voluntary arbitration (Labour Code, Articles 506–507): The parties involved in the negotiation of a collective agreement may initiate a process of voluntary arbitration at any time during the conflict. The arbitrating body comprises one representative from each side of the conflict (employers and trade unions) and a third member who is chosen by the two representatives. The parties involved are obliged to inform the MTSSS about the beginning and the conclusion of the process.

• Mandatory arbitration (Labour Code, Articles 508–509): Mandatory arbitration may take place if all previous steps of negotiation and conciliation in relation to a collective agreement (conciliation, mediation and voluntary arbitration) have failed and if the majority of social partners represented at the CPCS recommend it. In the case of risks to the life, health or security of citizens, the MTSSS may unilaterally initiate the mandatory arbitration (after consultation with the CPCS). In the case of the negotiation of a completely new agreement, one of the parties may request mandatory arbitration if the other party has brought all previous steps of negotiation and conciliation to failure. The MTSSS decides on the execution of a mandatory arbitration, taking into consideration (1) the number of workers affected by the conflict, (2) the relevance of social protection of the workers covered, (3) the social and economic impact of the conflict and (4) the position of the parties involved regarding the object of the arbitration. After consultation of the parties involved and the regulating or supervising body of the respective sector, the MTSSS unilaterally determines the decision regarding the arbitration.

• Necessary arbitration (Labour Code, Articles 510–511): If a collective agreement expires and is not substituted by another agreement during the 12 months (covering at least 50% of the respective workforce), the MTSSS may initiate the process of a necessary arbitration (which is regulated by a specific decree-law). This type of arbitration is designed to be triggered in the course of the expiration of a collective agreement. In the case of a strike in a sector or institution that provides indispensable services for the population, the respective trade union is obliged to present in its prior notice of the strike submitted to the MTSSS a proposal for ‘minimum services’. If the parties involved do not come to a common solution, an arbitration takes place at the CES (Labour Code, Articles 534, 537–538).

Individual dispute resolution mechanisms

The Labour Code (Article 492(2)(f)) stipulates that collective agreements must regulate conflicts regarding employment contracts, ‘namely by conciliation, mediation and arbitration’. It seems that the most important collective agreements revised since 2009 (textiles, clothing, shoes, metal, construction and commerce) do not make use of this legal possibility to regulate the resolution of individual conflicts.

In the case of disciplinary measures against an individual worker and in the case of dismissal, the respective works council and trade union organisations must be informed (Labour Code, Articles 353, 356–357). In the case of the dismissal of a worker resulting from the extinction of the workplace or because of ‘inadaptation’ of the worker to the demands of his or her job, the respective works council and trade union organisations must be informed and consulted (Labour Code, Articles 370, 375, 377–378).

The Labour Code (Article 387) states that the legality and admissibility of a dismissal can be judged only by a legal court.

The most common forms of collective dispute resolution in Portugal in relation to collective bargaining are conciliation and mediation. Arbitration is extremely rare. The annual report on collective bargaining for 2015, 2017 and 2019 (CRL/MTSSS, 2016, 2018, 2020) examined the trends observed in 2005–2018, concluding that the most common and most successful form of dispute resolution has been conciliation. Mediation has been less frequent and with more limited results. Between 2005 and 2018, only one decision based on voluntary arbitration was published and three processes of compulsory arbitration were concluded. The last two years there was nothing to add. As regards the necessary arbitration, there was not a single case concluded in the last decade, although in 2018 there was one request.

Use of dispute resolution mechanisms, 2012–2021

Note: * Number of yearly requests.

Source: CRL/MTSSS (2016, 2018, 2021); DGERT/BTE online.