Delays in transposing working time Directive into Portuguese law
Disagreements over the interpretation of key terms relating to the regulation of working time have delayed the tripartite consultation process for the transposition of the 1993 EC Directive on certain aspects of the organisation of working time into Portuguese law. The Directive has still not been transposed at the end of 1997.
Government and social partners are aware of the urgent need to transpose the EC Directive on certain aspects of the organisation of working time (93/104/EC) into Portuguese law, a process which should have been completed by 23 November 1996 - over a year ago. Such transposition is in fact expressly provided for in the most recent social concertation agreement signed on 20 December 1996. The delay is explained in the context of Law No. 21/96, dated 23 July 1996, which introduced a phased reduction in working time to 40 hours per week. However, the application of this important law gave rise to various disputes over the interpretation of terms like "breaks", "effective working time" and "normal working period" (PT9712154F).
The regulation of working time is therefore not yet very deeply rooted in Portuguese law (in fact, current legislation consists of a "cascade" of different laws, many of which are out-of-date, not entirely coherent and give rise to conflicting interpretations). As a result of this, it can be easily understood that no agreement has been reached over the latest proposal put forward for the transposition of the Directive. This proposal had been submitted to the two trade union confederations, - the General Confederation of Portuguese Workers (Confederação Geral dos Trabalhadores Portugueses, CGTP) and the General Workers' Union (União Geral de Trabalhadores, UGT) - and the three employers' confederations - the Confederation of Portuguese Industry (Confederação da Indústria Portuguesa, CIP), the Confederation of Portuguese Commerce (Confederação do Comércio e Serviços de Portugal, CCP) and the Confederation of Portuguese Farmers (Confederação dos Agricultores de Portugal, CAP) - that are legally represented on the Council for Social Concertation (Comissão Permanente de Concertação Social) of the Economic and Social Council (Conselho Económico e Social) (PT9712155F).
However, the criticism that the employers' confederations have made of the Government's bill are more extensive and much more severe than those formulated by the two trade union organisations.
Generally speaking, these criticisms can be summarised as follows.
- The employers' confederations believe that the bill introduces less flexibility than the text of the Directive itself and is negatively innovative in relation to certain aspects that have economic repercussions for companies. They are also opposed to the fact that the bill has included the provisions of International Labour Organisation Convention No. 171 on night work, which has already been ratified by Portugal, as they consider that normative rules from different sources should not be "mixed together". The employers' confederations furthermore want the national legislators to make full use of the exemptions that are allowed by the Directive itself and to take advantage of the transposition law to solve the various problems that have arisen over the interpretation of legislation as a result of the different texts to be found in the Portuguese laws that regulate working time.
- The trade union confederations draw attention to the fact that, generally speaking, Portuguese law already establishes a level of protection that is equal to or greater than that provided by the Directive. Their demand is that this level should be maintained without prejudice to certain adaptations/innovations in particular areas that they want to see transposed into Portuguese law (such as more rigorous implementation of measures for the protection of health and safety at work and more effective guarantees in relation to night work). There is also a general line of convergence between the two trade union organisations on the wide range of "breaks" or "interruptions" in work that they believe should be considered as effective working time, although there are different nuances in their interpretation of the actual scope of these breaks for the purposes of their being included (or not) in the concept of effective working time.
Although the Government has not yet succeeded in obtaining the agreement of the social partners, despite having made several committed attempts to do so, it is nonetheless expected that a final proposal for the transposition of the Directive will soon be presented to Parliament.