Unions win return to 35-hour week in local administration

Public sector unions in Portugal have been trying to win back the 35-hour week. The government passed a law in September 2013 that increased it to 40 hours a week with no pay rise for the extra time worked. The unions have had no success at central administration level but, by the beginning of February 2014, local negotiations had led to about 145 agreements that restore the 35-hour week in local authorities. The government, anxious to cut costs, is refusing to approve the new agreements.

Increase in public sector working time

The basic working week in Portugal’s public sector was increased from 35 to 40 hours by Law No. 68/2013 (in Portuguese, 945 KB PDF) as part of the government’s austerity measures to cut costs in the sector. The law came into force on 28 September 2013. At the beginning of September, however, a group of opposition parliamentary members from the Socialist Party (PS), the Communist Party (PCP), the Left Bloc (BE), and the Greens (PEV), all of whom had voted against the law during its passage through parliament, asked the Constitutional Court (TC) to decide whether it contravened Portugal’s constitution.

Among other issues, they raised the question of Article 10 of the new law. It states that the increase in working time is mandatory and supersedes any other legislation or collective agreements. In the private sector, Labour Code regulations set maximum weekly working hours but allow collective agreements to establish normal working hours below this limit. The new law for the public sector, however, sets a normal working period of 40 hours a week, as in the private sector, but then forbids any reduction of these limits by collective agreements.

The government has justified the new law on the grounds that it brings public sector working hours into line with those in the private sector. The petition to the Constitutional Court argued that since the new law doesn’t allow for similar variations to working hours by negotiation, it effectively establishes separate regimes for the two sectors.

The opposition MPs put forward a number of other arguments in their petition. They said that the law’s alteration of working hours would adversely affect the family life of the employees concerned in a way they could not have foreseen when first employed in the sector. The longer hours also contradicted both the evolution of working time in recent decades and the needs of a labour market suffering from high unemployment rates. Finally, the MPs argued that increasing working hours without increasing pay would permanently reduce wages in the public sector by an average of about 14.3%.

On 21 November 2013, the Constitutional Court issued its final decision (Judgment No. 794/2013, in Portuguese), ruling that the law complied with constitutional principles. Because the ruling was decided by just one vote – seven votes in favour and six against – it has been highly controversial.

However, the court also ruled that although the new law should take precedence over existing collective agreements, it should not prevent ‘in the future, the establishment through collective bargaining of amendments to the new normal period of work for public employees [that are] more favourable to those workers’. This ruling made it possible for unions to begin negotiating collective agreements that might again reduce working time in the public sector.

Collective bargaining strategy

Portugal’s trade union confederations – the General Confederation of Portuguese Workers (CGTP-IN) and the General Workers’ Union (UGT) – and public sector unions protested strongly during the progress of the new working hours into legislation, and were confident that the TC would declare it unconstitutional. On 8 November 2013, public sector unions held a national strike, protesting against the austerity plan’s increase in working time and its proposed wage and pension cuts.

The TC’s decision that the law was not unconstitutional took them by surprise, particularly because the TC has recently found in favour of a number of union claims and forced the government to retreat (PT1309019I; PT1310019I). The confederations and the sector’s unions decided to act instead on the TC’s second ruling that working hours could be changed by collective agreement.

Negotiations for reduced hours at central administration level have been blocked by the government’s determination to maintain the new 40-hour working week. At local level, however, local authorities have the power to conclude agreements without reference to central government. The results of local negotiations have been impressive. Local government unions – STAL, SINTAP and Lisbon’s STML – had negotiated agreements to maintain the 35-hour with around 145 local authorities by the first week of February 2014, including the municipalities of Lisbon and Porto.

The negotiations were conducted under the legal framework established in 2008 by Law 59/2008 (in Portuguese, 451 KB PDF) which made it possible for local authority collective agreements to have the same standing as private sector agreements. One type of collective agreement this law provided for was the Collective Agreements of a Public Employer Entity (ACEEP) which can only set rules about the duration and organisation of working time (with the exception of pay supplements), health and security at work, the minimum level of services that must be maintained during a strike, and meetings between unions and management. The various ACEEPs signed since 2009 have focused mostly on working time adaptability and flexibility (PT1307019Q).

This means that the high number of agreements concluded recently has to be considered a significant success given the deadlock, particularly in the public sector, over negotiations on other issues such as wages, and in the private sector over any form of collective bargaining (PT1301019Q, PT1402049Q).

Government delays local agreements

The response of the government to these developments was unprecedented.

On 10 February 2014, the Ministry of Finance issued a statement saying that it was seeking the advice of the Consultative Council of the Attorney General’s Office (PGR) to resolve doubts about the legality of government intervention in collective agreements signed local authorities. It has particularly asked the PGR to rule on whether local authorities have autonomy in all human resources matters, including working time and pay.

Until the PGR gives its decision, says the Finance Ministry, the Government will not act on any requests for signature or approval of agreements sent to it by local authorities. The Directorate General for Administration and Public Employment (DGAEP), which is responsible for registering collective agreements, will not record the new agreements.

Local government union STAL says there is no reason to question the autonomy of local authorities in this area because Article 242 of the Portuguese Constitution clearly states that the government supervises only local authorities’ compliance with the law. It expressly excludes any power to negotiate on behalf of local governments or to veto legitimate agreements they reach with unions. STAL also says there is no legal basis for the request for a PGR ruling, and accuses the government of using it as a way to suspend the constitutionally guaranteed right to collective bargaining.

Commentary

Because there is deadlock in collective bargaining in the private sector, and an attempt to remove some employees’ rights in the public sector, the unions’ response to the increase of public sector working time is of major importance. While unions have continued their campaign to have the law repealed, their strategy has also been to explore all the possibilities collective bargaining could offer at national and local level.

At national level, the government has blocked union demands during collective bargaining for restoration of the 35-hour working week. At local level, the unions’ strategy has been remarkably successful and amounts to a major defeat of the government’s cost-cutting plans. This explains the government’s attempt to prevent, or at least delay, recognition of the local agreements.

The resolution of this controversial issue now lies with the PGR.

Maria da Paz Campos Lima, Dinâmia

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