New commission prepares revision of labour law

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During 2000, an official commission, made up of legal experts, has been examining possible revisions to Portuguese labour law. The government wants to make labour law more efficient and coherent, and to open up more space for collective bargaining rather than legal regulation.

A Commission for the Analysis and Systematisation of Labour Law (Comissão de Análise e Sistematização da Legislação Laboral) was created at the beginning of 2000. The legal instrument which established the commission (Order nº 5875/2000 of 15 March 2000) stresses that "Portuguese labour law needs to be reviewed on the basis of a far-reaching study in which all concerned take part, and which ensures both the technical and legal quality of the review itself and the existence of an adequate degree of social consensus behind it." The Commission is made up of 10 labour law experts, from a wide variety of professional backgrounds and with varying approaches, and is chaired by Monteiro Fernandes.

The background to the establishment of the commission is set out in the chapter of the current National Action Plan (NAP) on employment (PT0006194N), drawn up in response to the EU Employment Guidelines, that addresses the modernisation of work organisation. This underlines that in Portugal practically every aspect of the working relationship is governed by law, while the various regulations are widely dispersed, sometimes causing problems when the laws come to be applied. This is why it is hoped that forthcoming changes will open up more space for collective bargaining and make the applicable legal regimes more accessible, better suited to their objectives and more efficient. The NAP also urges the social partners to negotiate at every level agreements which seek to modernise labour relations.

The findings of a round-table discussion among labour law specialists, presided over by the chair of the new commission, were recently published by Forum Justitiae Direito &Sociedade. The participants at the meeting highlighted the issues which need to be examined in the labour law review process:

• technical aspects concerning the extent of the amendments to be made, the type of legal instrument that should be used to codify labour law, and the institutions that should be involved;

• some participants questioned whether the social dialogue and concertation arena is the right forum in which to revise legislation, in that consensus on amendments will be difficult to achieve, given that employers want liberalisation and the trade unions want to press both old and new claims for regulation;

• the future of the classic paradigm on which the individual employment contract is currently based - that of a fixed job with fixed working time. The existing situation, accordingly to some experts, is based on law that is more than 30 years old and is based on a paternalist and corporatist rationale, and marked by excessive regulation and a high degree of ineffectiveness. At the same time, some participants believed that some powers enjoyed by employers need to be limited. It will be important to find a new model guaranteeing security of employment and to make the configuration of the various regulations more effective; and

• the need to regulate collective employment relationships in such a way as to overcome the factors which have led to the paralysis of collective bargaining. In particular it is seen as necessary to debate the representative status of trade union organisations, the right to bargain and dispute-resolution mechanisms, while remembering that the safeguarding of existing rights is an important issue.

The final outcome of the Commission's work will be submitted for discussion within the Standing Commission for Social Concertation (Comissão Permanente de Concertação Social, CPCS), a committee of the tripartite Economic and Social Council (Conselho Económico e Social).