Union confederation alleges exclusion from national-level representative body

Download article in original language : PT9707128FPT.DOC

In May 1998, the General Confederation of Portuguese Workers (Confederação Geral dos Trabalhadores Portugueses, CGTP) lodged a complaint with the Ombudsman on a legal question relating to its representation on the country's trilateral social concertation bodies.

In a document drawn up on 8 May 1997 the CGTP submitted a complaint to the Ombudsman (provedor da justiça) - who acts independently in the defence of citizens' rights - about what it considers to be an infringement of its constitutional right to representation on one of the country's consultative bodies which had been set up under the Constitution.

The complaint

The basis of the complaint may be summarised as follows. Within Portugal's institutional framework, the Economic and Social Council (CES) is a body for consultation and concerted social action. The Economic and Social Council includes a number of commissions, one of which, the Council for Social Concertation (Comissão Permanente de Concertação Social, CPCS), is especially involved in discussing, arbitrating, negotiating and mediating social issues between the Government and its social partners. Its membership falls into three sections: members of the Government, the leaders of the three confederations of employers' organisations and the two main Portuguese union confederations. Only the CGTP and the General Worker's Union (União Geral de Trabalhadores, UGT) have the right to represent Portuguese trade unions on the Council for Social Concertation.

This constitutional right establishes that the representative trade unions may not be excluded from the bodies for consultation and concerted social action, and that none may be created without the involvement of all such representative unions.

Within the scope of the most recent Strategic Social Pact, signed in December 1996 by the Government, the UGT and the three employers' confederations - the Confederation of Portuguese Farmers (Confederação dos Agricultores de Portugal, CAP), the Confederation of Portuguese Industry (Confederação da Indústria Portuguesa, CIP) and the Confederation of Portuguese Commerce (Confederação do Comércio e Serviços de Portugal, CCP) - a Monitoring Commission was established. However, it does not include the CGTP.

As a result, seeing that in practice the Monitoring Commission carries out the tasks legally assigned to the CPCS and the CES, "usurping their respective functions", CGTP alleges that it is being obstructed in its normal functioning within the constitutionally established bodies for social concertation, in violation of its basic right to representation on the CES. Hence the lawfulness of the creation of the Monitoring Commission for the Strategic Social Pact is questionable since its main (if not only) target, according to the CGTP, was to exclude it as "punishment" for not having subscribed to the Pact.

Precedents for the complaint

This argument presents nothing new. Social pacts, or social concertation agreements, have always been implemented within the framework of the joint national consultative bodies on which the CGTP has a legal right to representation. However, the CGTP has never signed any of the social pacts, although it always participated in the respective negotiations.

It is also quite common for the signatories of a social pact to create a Monitoring Commission to guarantee that the commitments made in it are actually carried out. Membership of these Monitoring Commissions includes only the representatives of the signatories, and the CGTP, which never signs the pacts, has always contested this practice.

Therefore, if the objections made by the CGTP reveal nothing new, the decision to lodge a complaint with the Ombudsman does indicate a different form of protest. Naturally linked to all this is the fact that the current Monitoring Commission for the Strategic Social Pact is considering (and will continue to consider within the remit of agreements signed between 1977 and 1999) a set of significant socio-economic measures with particular reference to certain fundamental changes in labour legislation.

Arguments against representation

Both the present and previous Portuguese Governments, as well as the UGT and the employers' organisations involved in social consultation, have always rejected the CGTP 's arguments. This position is presumably not about to alter, so what is it based on?

Trilateral social agreements have always been negotiated within the appropriate national bodies, with the participation of the CGTP, on the basis of free collective bargaining. Both the Government and the workers' and employers' organisations are, therefore, free to sign the agreements or not, as they see fit. This freedom is a fundamental right acknowledged internationally and under Portuguese legislation.

The commitments made by the signatories to the trilateral agreements have to be fulfilled. The signatories have the right to follow up the implementation of the measures and the projects agreed in order to guarantee that intentions are properly carried out. They therefore have the right to create a Monitoring Commission for this purpose. However, only the representatives of the parties that signed the pacts, and not those who legitimately refused to sign them, may belong to this Commission.

Hence the CGTP may not be a member of the Monitoring Commission of a social pact that it did not sign. Nor indeed may any other confederation that does not wish to subscribe (as has already happened in previous agreements, both with the Confederation of Portuguese Industry and with the Confederation of Portuguese Farmers). So the CGTP is not being singled out for exclusion, as no other social partner refusing to sign such an agreement will be allowed to join the relevant Monitoring Commission either.

These arguments against the CGTP 's protest are supported by yet another factor: all proposals and measures adopted by the Monitoring Commission (and they do not always obtain the agreement of all of the members of the Commission which signed the pact) are always submitted to the CPCS and the CES for approval. Now, it is at this stage that the CGTP may accept, reject or try to amend the proposals, legitimately defending its institutional position and interests, subject of course to the equal rights of the other members of the CPCS. It is thus not correct to say that these Councils have been usurped of their legal status.

Commentary

According to legal interpretation, the counter-arguments presented so far by successive governments and social partners which have signed the various trilateral social agreements seem to be valid and accurate. The Monitoring Commissions instituted by them express commitments resulting from free negotiation. It therefore seems unjust to think that an organisation that legitimately refuses to sign a social pact should aim at interrupting its implementation by insisting on membership of a Monitoring Commission responsible for guaranteeing its proper execution.

For this reason, it will prove difficult for the CGTP to question the legal status of the Monitoring Commission. According to the law, the CPCS and CES are responsible for assessing the measures and projects that the Monitoring Commission of an agreement may draw up. Its operating procedures do not affect the legal competence of the CPCS and the CES.

From a socio-political point of view, one should also always bear in mind the impact of social concertation agreements on the country's social and economic policies and the political opportunities that they open for their signatories. The CGTP is surely aware of these points. It is from this perspective that the complaint should be interpreted: we are dealing here with a political initiative - an alleged exclusion by the Government and by the other social partners from participating in establishing the means to carry out the terms of the Strategic Social Pact. This is as if the CGTP were to announce beforehand the negative features of the Pact and then at the same time prepare to oppose its implementation or possibly to consider suspending participation in the CPCS and the CES, without ignoring the political effects of its actions. (Nascimento Rodrigues, UAL)