Health and safety bills under discussion

Download article in original language : PT9810100FPT.DOC

In autumn 1998, two draft health and safety bills are under consideration in Portugal. Their main aim is to provide for improved information and consultation on the issue, and to regulate the election of workplace health and safety representatives.

Two draft bills on health and safety at work are currently under discussion in Portugal. The first is a draft revision of Decree-Law 441/91 of 14 November 1991 regarding the principles governing health and safety at work which was under public consultation for 30 days starting from 31 August 1998. Decree-Law 441/91 sought to transpose into Portuguese law the EU framework Directive on the introduction of measures to encourage improvements in the health and safety of workers (89/391/EEC) of 12 June 1989. The preamble of the revised decree-law currently under discussion states that some of the Directive's rules have not been adequately transposed, and it is therefore necessary to make changes.

The second proposal, also currently under debate, is a draft bill on the election of workplace health and safety employee representatives. The draft was debated in the Standing Committee for Social Concertation (Conselho Permanente de Concertação Social, CPCS) and the social partners have issued statements of their opinions. The subjects addressed by Decree-Law 441/91 include participation, information and consultation regarding health and safety at work, and the preparation of this second draft bill was sparked by the need to regulate employee representation in the workplace for these purposes

Proposed measures

Decree-Law 441/91 was a framework law because it was necessary to establish strategic reference points and an overall legal framework for prevention in the workplace and to comply fully with International Labour Organisation (ILO) health and safety standards (Convention No. 155 on occupational safety and health) and the EU framework Directive. There is now a need to institutionalise more efficient forms of dialogue and participation. The new draft Decree-Law contains a chapter on prevention, in which there is an article that would ensure participation and consultation of those social partners with seats on the Economic and Social Council (Conselho Económico e Social, CES) by making them part of the Institute for Safety, Hygiene and Health in the Workplace (Instituto para a Segurança, Higiene e Saúde no Local de Trabalho)- presently called the Institute for the Improvement and Inspection of Working Conditions (Instituto do Desenvolvimento e Inspecção das Condições de Trabalho, IDICT) - and the National Council for Hygiene and Safety in the Workplace (Conselho Nacional de Higiene e Segurança no Trabalho).

The draft Decree-Law also contains a chapter on the rights, duties and safeguards of the parties concerned which includes an article on information and consultation. The article states that "workers in an enterprise, as well as their representatives, should have access to updated information "on risks, first aid and measures to be taken in hazardous situations and in case of fire. This information should also be disseminated to new recruits, those who change jobs within the company, whenever new technology is introduced and for activities that involve employees from several enterprises. Employees may also introduce proposals and should be consulted about measures to be implemented on health and safety training and the appointment or departure of workers responsible for organising the measures.

Health and safety representatives, it is proposed, should be elected directly by the employees according to specific principles of representation. Those who are eligible to present a list of candidates for such elections are: trade unions who represent workers in the company; and workers (directly) representing at least 20% of the company's workers. Joint health and safety committees, on which employee representatives would sit, may be created by collective bargaining.

The second draft law precisely details how the election process is to be regulated as well as outlining the rules to protect employee representatives, which would be the same as for union representatives.

The proposed changes to Decree-Law 441/91 put more emphasis on the obligations of employers by stating "their duty to consult the representatives beforehand and in due time" and "inform them more often" and in active terms such as "must inform" instead of the passive "employees should be provided with access..." They are also obliged to inform representatives when other companies have been subcontracted or when self-employed workers have been engaged. Such measures aim to make relevant vocational training and organisation easier. The amendments also state that representatives may solicit the intervention of the Labour Inspection Authority (Inspecção Geral do Trabalho) if the means used and health and safety measures taken are not adequate. They also provide for the use of outside services in the case of fires and medical emergencies.

Trade unions' positions

The main 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) - have commented both on the general aspects and specific features of the bill in relation to the election of heath and safety representatives. In general, CGTP and UGT have both commented that a great deal of time elapsed between the introduction of the heath and safety framework (Decree-Law 441/91 of 1991) and the specific regulations, and that there is still work to be done on a number of issues. According to UGT, the 1996-9 tripartite Strategic Concertation Pact (Acordo de Concertação Estratégica, ACE) (PT9808190F) had provided for the establishment and consolidation of instruments in this area however, there has been no follow-through up until now. Although the legislation on heath and safety has dealt exhaustively with physical, chemical and biological agents, it has overlooked the issue of work organisation.

With regard to the election process, the two union confederations highlight the unequal treatment accorded to employees with different statuses - the right to vote depends on length of employment, while part-time employees will be counted "proportionally based on their working hours" The unions state that the way the election process is planned to function is neither democratic nor transparent in areas such as: the way candidates' applications are to be worked out; assessment of whether applicants meet the requirements; approval; campaign procedures; ballots; and rules governing how votes are counted in the electoral process. Both union confederations foresee that there will have to be bodies especially devoted to monitoring the process: an election committee, according to CGTP, and an outside authority (IDICT) according to UGT.

CGTP states that the key issue regarding health and safety is not the lack of a legal framework, because the one in place is considered sufficient in spite of some gaps and the lack of regulation. The issue is, rather, that it is not consistently applied. Portugal has the highest rate of work-related accidents in the EU.

Commentary

Studies from the European Foundation for the Improvement of Living and Working Conditions indicate that Portugal has the smallest proportion of workers who seek participation at workplace level. They also highlight that participation, information and consultation are not important issues on the Portuguese social partners' agenda. This evidence might explain the lack of discussion on the content of information and consultation in the framework of health and safety and the need to regulate more strictly the election process. (Maria Luisa Cristovam, UAL)

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