Portugal: Government continues blockade of collective agreements in local administration

Around 500 collective agreements affecting local authority workers are waiting to be recognised by the government, which recently extended the working week from 35 to 40 hours without compensation. The trade unions and municipalities see this reluctance as a violation of the Portuguese Constitution and the legal framework of collective bargaining in the public sector.

Background

On 28  September 2013, Law No. 68/2013 increasing the weekly working time in the public sector from 35 to 40 hours, without equivalent payment (in Portuguese, 944 KB PDF), came into force. The trade unions in the public sector responded with a general strike on 8 November 2013. The government emphasised that the increase in working time was mandatory and superseded  any other legislation or collective agreements. The Constitutional Court (TC) issued a judgement on 21 November 2013 clarifying the position (in Portuguese).  It stated 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’ .

The legal framework established in 2008 by Law 59/2008 (in Portuguese, 450 KB PDF) made it possible, for the first time in Portugal, for collective agreements in the public sector to have the same standing as private sector agreements. Although this law limits the range of issues to be included in collective agreements in comparison with the private sector, it considers working time as one of the main issues to be set by collective agreements in the public sector.  This law also established the so-called  Collective Agreements of a Public Employer Entity (ACEEPs) 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 concluded in 2009 focused mostly on working time adaptability and flexibility.

Block on collective agreements restoring 35-hour week in local administration

Following the TC decision, trade unions in the public sector launched a strategy to try to get the 35-hour week reinstated in collective agreements. While the unions failed to reach any agreement at central level because the government blocked negotiations on this matter and persisted in unilaterally imposing the 40-hour week, the unions’ strategy was highly successful at the local level. The results of local negotiations have been impressive. Between November 2013 and February 2014, local government unions – the Union of Local Authority Workers (STAL), the Union of Workers in Public Administration (SINTAP) and the Union of Workers of the Municipality of Lisbon (STML) – succeeded in reaching agreements returning to 35 hours with around 145 municipalities, including the municipalities of Lisbon and Porto.

The government response made public on 10 February 2014 was unprecedented. It asked the Consultative Council of the Prosecutor General’s Office (PGR) for advice as to whether it was entitled to intervene in collective agreements signed by local authorities and whether local authorities have autonomy in human resources management, including working time. Until the PGR gives its decision, said the Finance Ministry, the government would not act on any requests for signature or approval of agreements sent to it by local authorities. Therefore, the Directorate General for Administration and Public Employment (DGAEP), which is responsible for registering collective agreements, has not been able to record the new agreements, thus preventing them coming into force.

Article 347 of Law 59/2008 says that members of the government responsible for finance and public administration, the responsible of the agency or service, and the employer are entitled to conclude ACEEPs. According to the interpretation of the Ministry of Finance and DGAEP, the law requires the cumulative intervention of the government and the employer, and not just the employer. According to the interpretation of trade unions and municipalities (and what has been the previous practice in relation to ACEEPs), the respect of the autonomy of local administration as defined by the Constitution implies that the municipalities are entitled to conclude collective agreements without government intervention.

STAL claimed there was 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 claimed there was no legal basis for the request for a PGR ruling and accused the government of using it as a way to suspend the constitutionally guaranteed right to collective bargaining.

On 22 May 2014, the PGR voted on a resolution on this issue. However, the government refused to make public the PGR resolution and stated that it required a cautious interpretation; trade unions and municipalities would have to wait until it took a final decision. According to the trade unions the government refusal to make public the PGR resolution means it is favourable to the recognition of the collective agreements and of collective bargaining autonomy in local administration.

Although the publication of the collective agreements remained suspended, trade unions continued negotiations with other municipalities, succeeding in expanding the number of agreements up to around 500 by the end of August 2014.  As the government did not give any  explanation why the agreements remained frozen, STAL filed a set of actions in court 'against the attempt by the government to boycott collective bargaining, indefinitely suspending the publication of nearly 500 ACEEP already signed'. The government was notified by the court to justify the non-publication of the agreements but, at the time of writing, had not complied. 

Commentary

Overall, the government has been trying to prevent and/or delay the recognition of local agreements, because restoring the 35-hour week would amount to a major defeat of its cost-cutting plans to increase weekly working time from 35 to 40 hours without compensation.

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