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Workplace Representation

Although in theory there are two channels of workplace representation of employees for most issues – through the workplace union representatives and through an elected works council, in practice works councils are relatively rare. They normally only exist in large companies where unions are strong. The rights of both are limited to information and consultation, with no opportunity to block management decisions.

In theory, workplace representation in Portugal runs through two channels: trade union delegates, representing trade unionists who may come together in trade union committees, and works councils – “workers’ commissions” (CTs), representing the whole workforce. There are also health and safety representatives.

In practice, works councils normally only exist where there is a strong union presence and the unions have effectively taken over many of their functions. Typically in such cases, the works council will be dominated by the largest union in the company, which will use the works councils’ information and consultation rights as an indirect method of being informed and consulted.

With union membership highest among larger companies this means that, despite the fact that by law there is no lower limit for setting up works council, in reality they are rarely found in companies employing fewer than 100 people, while union delegates are found much more widely.

The available evidence on the extent to which union delegates and works councils are present within companies is somewhat contradictory. On the one hand, figures from the 2007 white paper on labour relations show that in 2007 survey responses indicated that 26.0% of employees worked in companies with trade union delegates; 26.1% in companies with health and safety representatives; and 18.5% in companies with works councils. However, as the white paper itself notes, the figures for health and safety representatives and works councils are “clearly higher than those which come from the labour administration registers”. These show that at the end of October 2007 there were only 196 works councils and 148 companies with representatives for health and safety registered in the whole of Portugal.1 One reason for this may be that works councils and representatives for health and safety allow their registration to lapse, even though they continue to exist. The CGTP-IN, which also keeps figures on the number of works councils, noted that a total of 1,383 works councils had been created by the start of 2008.2

Numbers and structure

It is up to the trade unions and the members in the workplace to decide on the number of trade union delegates they want to elect. However, there are legal limits on the number who can benefit from specific legal rights and protections. These are linked to the number of union members (see table)

Number of union members

Number of union delegates with rights

less than 50

1

50-99

2

100-199

3

200-499

6

Above 500 union members there is one extra trade union delegate with protection for each additional 200 members.

If there are sufficient union delegates – there are no precise rules on this – they come together in a committee and where there are several unions in a workplace, fairly common because of the structure of Portuguese unions (see section on unions), they may form a joint union committee. They adopt their own rules of procedure.

Works councils consist only of employee representatives. There is no management involvement. By law, they can be set up in any organisation at the request of the employees, although in practice they are mostly in bigger organisations. There can only be one works council in any company. But sub-works councils can be set up in individual workplaces.

The number of members of the works council varies with the size of the company (see table).

Number of employees

Number of works council members

fewer than 50

2

50-200

3

201-500

3-5

501-1000

5-7

1000+

7-11

The number of members of sub-works councils also varies with the size of the workplace (see table)

Number of employees

Number of sub-works council members

Fewer than 50

1

50-200

3

201+

5

Tasks and rights

 

The role of the trade union delegates includes: providing a link between union members and the union, through recruitment and campaigning activity; ensuring that existing collective agreements are properly applied; and negotiating new collective agreements at company level. In most cases these need to be ratified formally by the union, although in companies with more than 150 employees (previously 500) trade union delegates, like works councils in companies of the same size, can now sign their own collective agreements (see section on collective bargaining).

 

Trade union delegates are entitled to information on “recent and probable development of the employer’s activities and economic situation” and information and consultation on “the situation, structure and probable development of employment”, as well as measures planned to maintain staffing levels, together with “measures likely to lead to substantial changes in work organisation”. This wording is in line with the EU framework directive on information and consultation (2002/14/EC).

 

The trade union committee or the joint trade union committee has the right to call all employees to a meeting in works time, subject to giving 48 hours notice and without prejudicing essential operations. The total time of such meetings may not exceed 15 hours a year.

 

In addition, in areas such as working time, training and temporary close-downs, the trade union delegates should be informed and consulted, if there is no works council.

 

The role of the works council is purely advisory and consultative. It does not have the decision making or veto powers which exist elsewhere in Europe.

 

It should receive a range of economic, financial and employment information. These include the financial plans of the business, the annual and quarterly accounts, the extent of taxation paid, plans to alter the capital structure of the business; production levels and their likely implication for employment, information on sales; personnel policy and works rules. In companies with more than 100 employees, the works council and the unions should be given a detailed annual report on staffing (the social balance sheet). In practice, works councils find it difficult to ensure that they are given all the information that by law they should receive.

 

Works councils should also be consulted over a range of issues with a right to present a view before the decision is taken. These include: the closure of the company or significant parts of the business; anything that could produce a significant reduction in the number of employees or a major worsening of working conditions; relocation; changes in working hours and the organisation of annual holidays; changes in grading and promotion procedures. They have 10 days to give their views in most cases.

 

In addition, the works council has consultation rights over any redundancies or dismissals or cuts in the normal working week. It has a right to express an opinion on the financial plans of the business and on training and retraining.

 

The works council also has the right to call meetings of all employees under similar terms to those for the trade union. As with the meetings called by the union, employees have a right to 15 hours a year for meetings called by the works council.

 

The works council should also be involved in the running of social activities such as canteens, although here, as in other areas, many works councils find it difficult to make use of their legal rights.

 

In most cases works council will not be involved in collective bargaining, where the unions normally have the sole right to represent the employees. However, changes to the labour code in 2009 permitted the works council to negotiate with the employer where the company employs at least 500 people, provided this has been expressly permitted by the union and in 2012 the threshold was lowered to 150 (see section on collective bargaining).

 

Election and term of office

 

Trade union delegates are elected in a secret ballot by the trade union members at their workplace. The detailed rules of the election are laid down by the unions, although the employer should be given the names of the successful candidates, and the term of office cannot be more than four years.

 

Works council members are elected by the entire workforce and must themselves be employees. (In practice they are frequently also trade union delegates). Elections must take place at least every four years, although the precise period is fixed in the rules of each works council, which should be voted on by the entire workforce. Nominations must be supported by at least 100 employees or 20% of the workforce, and the lists of candidates are normally linked to one of the union groupings.

 

Protection against dismissal

 

The union must be warned of the intention to dismiss a trade union delegate and after dismissal the delegate will normally receive financial support until the case is heard. If the dismissal is found to be unfair, the compensation is set by the court at a rate of between 30 and 60 days per year of service and cannot be less than six months’ pay. Members of the works council and representatives for health and safety have similar protection.

 

Time off and other resources

 

Trade union delegates are entitled to five hours a month paid time off – eight if they are in a joint committee with several unions

 

In addition, members of the executive of the union are entitled to four days paid time off per month on the following basis.

 

Number of union members

 

 

Number of union executives with right to 4 days time off

 

 

less than 50

 

 

1

 

 

50-99

 

 

2

 

 

100-199

 

 

3

 

 

200-499

 

 

4

 

 

500-999

 

 

6

 

 

1,000-1,999

 

 

7

 

 

2,000-4,999

 

 

8

 

 

5,000 -9,999

 

 

10

 

 

10,000+

 

 

12

 

Trade union delegates in companies or workplaces with more than 150 employees are entitled to the use of a permanent office within the company “appropriate to the exercise of their functions”. In smaller companies or workplaces they are entitled to use an office as required.

 

Works council members are entitled to 25 hours paid time-off a month, but only half this in very small companies. In companies with more than 1,000 employees, the members of the works council can agree that the total amount of time off, worked out on the basis of each member having 25 hours a month, can be divided as they wish. However, in these circumstances no single member of the works council can have more than 40 hours. There is no legal right to paid time-off for training.

 

Works councils are entitled to the use of "adequate" premises as well as the material and technical support necessary for them to carry out their work.

 

Time-off rights cannot be accumulated between the three different types of employee representation: union structures in the workplace, works councils and representatives for health and safety. For example, a works council member who is also a trade union delegate cannot add together the time off for the two functions. In all three cases, the employer should be informed at least two days in advance of the intention to take time off, except where there are unexpected reasons for doing so.

 

Group representation

 

There is no formal structure for group level representation. However, there can only be one works council in any company. Where there are several workplaces, they set up sub works councils and send representatives to the company works council.

 

The law also provides for coordinating councils of workers, who bring together works councils from different companies with the aim of creating links between them and having a positive role in economic restructuring. They may not have more members than the number of works councils they are coordinating, up to a maximum of 11, and the members are entitled to 20 hours off a month. However, in reality, they barely exist. At the end of 2005 there were only six in the whole country.

L. Fulton (2013) Worker representation in Europe. Labour Research Department and ETUI. Produced with the assistance of the SEEurope Network, online publication available at http://www.worker-participation.eu/National-Industrial-Relations.