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Workplace Representation

There are two channels of workplace representation of employees for most issues – through union representatives at the workplace and through an elected works council. However, in practice works councils are relatively rare. The rights of works councils are limited to information and consultation, with no opportunity to block management decisions.

The Portuguese Labour Code provides for two channels of workplace representation: trade union delegates, representing trade unionists, who may come together in a trade union committee (comissão sindical) or joint trade union committee (comissão intersindical), and the works council (comissão de trabalhadores – CTs), representing the whole workforce. There are also health and safety representatives.

 

The establishment of a works council is not automatic. It requires a majority of employees to vote in favour, in a ballot requested by 100 employees or 20% of the workforce. The rules of the works council must also be approved in a vote.

 

In practice, works councils are relatively rare, although the statistics are somewhat contradictory. The 2016 green paper on industrial relations stated that, at the end of 2015 across the whole of Portugal, there were only 191 active works councils, defined as being constituted with current members in post. This is similar to the 196 recorded in a similar publication in 2007.[1] However, the CGTP, the largest union confederation, noted, in its report to its 2020 congress that it had details of 1,551 private and public sector companies where works councils had been established, although not all of them were still active.[2] Nevertheless, it was able to identify 295 active works councils where its members were present. One reason for this difference in numbers may be that the union is also counting sub-works councils. Each company can only have one works council, irrespective of its size.

 

Whatever the precise numbers it seems clear that the extent of works councils in Portugal is limited. Eurostat figures show that in 2017 there were 6,365 companies with 50 or more employees in Portugal  in 2017, but figures from the Ministry of Labour and Social Solidarity for 2018 and 2019 show that just 421 works council members and 333 sub-works council members were elected in 2018, and only 295 works council and 210 sub-works council members in 2019.[3]

 

There are no similar figures on the number of union delegates and trade union committees at the workplace. However, they appear to be much more common. The CGTP’s report to its 2020 congress states that 12,745 new trade union delegates were elected at workplaces during the four years 2016 to 2020. This is more than five time the number of members of works councils it reports – 2,364.

 

An indication of the overall extent of employee representation at the workplace is provided by the results of Eurofound’s 2013 European Company Survey. These show that, in 2013, only 8% of establishments in Portugal with at least 10 employees had some form of official employee representation, either a union delegate, a union committee or a works council. This is the lowest percentage in the EU, and only a quarter of the EU28 average of 32%. As elsewhere in Europe, larger organisations were much more likely to have such a structure than smaller ones. The survey shows that 63% of establishments with more than 250 employees had representation, but only 25% of those with between 50 and 249 employees. In smaller workplaces in Portugal, those with between 10 and 49 employees, the survey indicates that just over one in twenty (6%) had employee representation.[4]

 

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. 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, provided it has at least five union delegates or all the separate union committees in the workplace. These committees 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 company, included public sector companies, 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). Teleworkers are included fully in calculating the number of employees and workers on fixed-term contracts are included in the calculation on the basis of the average number in place at the end of each month in the previous financial year. However, temporary agency workers are not included.[5]  There is no indication that part-time workers are not fully counted.

 

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

 

The are no rules on how frequently the works council should meet, but it must meet management at least once a month. The general rules of the works council (statutes) must be approved in a vote of the whole workforce.

Tasks and rights

 

A key part of the role of the trade union delegates is to provide a link between union members and the union, through recruitment and campaigning activity.

 

In the area of collective bargaining, trade union delegates ensure that existing collective agreements are properly applied; and, in the minority of companies where there is a company-level agreement, may be involved in collective bargaining. In most cases any agreement reached will 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). This information is to be requested in writing by the trade union delegates and by law it must be provided within eight to 15 days depending on its complexity.  They must also specifically be informed about the use of temporary contracts and any reduction in work breaks.

 

In addition, if there is no works council, the trade union delegates should be informed and consulted on working hours, hours for interns, holiday arrangements, redundancy proposals, dismissals linked to capability, works rules and temporary close downs. It must also be informed of individual dismissals, if there is no works council, and can express its point of view.

 

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.

 

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

 

As set out in the Labour Code, its general rights at the workplace are to:[6]

  • receive the information necessary to carry out its activities;
  • exercise some control over the company's management;
  • participate, with others, in company restructuring, in the preparation of occupational training plans and reports and in procedures related to changes in working conditions; and
  • manage or participate in the management of the company's social provision (such as canteens).

 

The information it must receive covers:

  • general activity and budget plans;
  • the organisation of production and its likely impact on levels of employment and equipment utilisation;
  • the supply position;
  • forecasts and levels of sales;
  • personnel management (including specifically workers on temporary contracts) and the establishment of basic criteria such as the overall wage bill and its distribution by occupational group, social benefits, productivity and absenteeism;
  • the financial situation, including the balance sheet and profit and loss account;
  • financing methods;
  • tax and other similar charges; and
  • any plans to change the purposes, share capital or activities of the company.

 

This information is to be requested in writing by the works council and it must be provided within eight to 15 days depending on its complexity.  

 

The employer is required to consult with the works council as soon as possible on:

  • changes in the criteria used for occupational classification and employee promotion;
  • relocation of the company or workplaces within it;
  • anything that could produce a significant reduction in the number of employees, a major worsening of working conditions; or changes in work organisation; and
  • the dissolution or insolvency of the company.

 

This consultation should be in writing and the works should respond to the company’s request within 10 days or within a longer period if the issue is complex.

 

The purpose of the limited control over management, set out in the Labour Code, is to promote “the responsible commitment of workers to the company's activity”. The works council is able to:

  • assess and issue its opinion of the company's budget and its changes, as well as to monitor how it is implemented;
  • promote the appropriate use of technical, human and financial resources;
  • promote measures that contribute to the improvement of the company's activity, particularly in relation to the use of equipment and administrative simplification;
  • make suggestions and proposals to the company on initial qualification and further training as well as on the improvement of working conditions, particularly health and safety at work; and
  • defend the legitimate interests of workers with the management and supervisory bodies of the company and the competent authorities.

 

In the specific area of restructuring the works council has a right to:

  • advance information and consultation on initial restructuring plans or proposals;
  • information on the final form of the restructuring planned and the opportunity to present its views before the plans are approved;
  • meet those in charge of preparatory restructuring work; and
  • make suggestions, complaints or criticisms to the company’s management bodies.

 

The works council should also be consulted about changes in working hours, the hours for interns (student workers), holiday arrangements, redundancy proposals, works rules, and temporary work closures. It is also involved in individual dismissals, where it can express its point of view. It must be asked for its opinion on any use of biometric data or remote surveillance and informed of any reduction in work breaks. It must also be consulted about health and safety issues if there are no separate health and safety representatives.

 

Sub-works councils have broadly similar rights, although at the level of an individual workplace rather than the whole company.

 

In practice, works councils often find it difficult to ensure that they are given all the information they should receive or are consulted sufficiently.

 

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 delegates, employees have a right to 15 hours a year for meetings called by the works council.

 

In most cases, the 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).

 

The situation described above relates to companies in both the public and private sectors. The situation is similar in public administration, following legislation introduced in 2009.[7]

 

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). The Labour Code makes clear that all workers “regardless of age or function”, have the right to take part in the elections both as candidates and as voters.[8] Nominations must be supported by at least 100 employees or 20% of the workforce, and voting is on the basis of a list system. Unions have no special nominating rights in these elections, but the lists of candidates are often linked to one of the union groupings. In its report to its 2020 congress, the CGTP reported that in a sample of 33 works councils 58.8% of the voters backed lists identified with the CGTP and 36.9% backed other lists.  

 

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. There is no limit on the number of times that works council members can be re-elected.

 

Protection against dismissal

 

In general, all types of employee representative, whether union delegates, works council members or health and safety representatives are given the same level of protection under the Labour Code. Employers may not dismiss, transfer or act in any way to the detriment of a representative carrying out his or her functions.[9]

 

Trade union delegates and members of the works council can be dismissed for misconduct and if they if their skills and work are considered to be inadequate. However, the initial assumption is that their dismissal is unfair. The works council must be informed and consulted through the process of any dismissal and if the worker facing dismissal is a union representative, the union must also be informed. Failure to follows the procedure in the case of a union delegate is held to be more serious than in dismissals where this is not the case. The protections provided to employee representatives also extend to candidates for and those who have held office in the previous three years.

 

If the dismissal of an employee representative 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.[10]

 

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 a union body, from local unions to national confederations, 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 four days’ time off per month

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

 

These amounts can be combined and used by a smaller number of executives, provided the overall total is not exceeded. This allows senior union executives to work full time for their union but continue to be paid by their employer

 

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. The also have the right to use of a noticeboard for union information and to distribute information from the union.

 

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, other than in publicly owned companies of this size, where one works council can be freed from normal duties for half their total hours.

 

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.

 

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.

 

Training rights

 

There are no training rights for employee representatives. Neither union delegates nor members of the works council have a legal right to paid time-off for training. However, unions have the right to participate in training linked to company restructuring.

 

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, figures on the number of members of coordinating councils elected each year show that they are very rare. In 2018 only 22 members were elected, and in 2019 only 11.[11]

 

[1]   Livro Verde sobre as Relações Laborais, Gabinete de Estratégia e Planeamento do Ministério do Trabalho, Solidariedade e Segurança Social, December 2016 http://cite.gov.pt/pt/destaques/complementosDestqs2/LIVRO_VERDE_2016.pdf  (Accessed 01.07.2020) and Livro Branco das Relações Laborais, Ministerio do Trabalho e da Solidariedade Social, November 2007

[2] Relatório de Actividades (Mandato 2016-2020) http://www.cgtp.pt/xiv-congresso/documentos/relatorio-de-actividades (Accessed 01.07.2020)

[3] DGERT website September 2019 https://www.dgert.gov.pt/organizacoes-do-trabalho-membros-eleitos-por-genero and June 2020 https://www.dgert.gov.pt/organizacoes-do-trabalho-membros-eleitos-por-sexo-dados-de-2019 (Accessed 23.07.2020)

[4] Eurofound (2015), Third European Company Survey – Overview report: Workplace practices – Patterns, performance and well-being, Figures for Table 44

[5] Articles 146, 171 and 189 of the Labour Code

[6] Article 423 and following Labour Code

[7] Guiao:  Comissões de Trabalhadores (constituição e eleição dos seus membros), direção-geral da administração e do emprego público July 2019 https://www.dgaep.gov.pt/upload//RCT/docs/Guiao_CT_21_ago_2019.pdf (accessed 01.07.2020)

[8] Article 415 Labour Code

[9] Article 406 Labour Code

[10] Articles 410 and 411 Labour Code

[11] DGERT website September 2019 https://www.dgert.gov.pt/organizacoes-do-trabalho-membros-eleitos-por-genero and June 2020 https://www.dgert.gov.pt/organizacoes-do-trabalho-membros-eleitos-por-sexo-dados-de-2019 (Accessed 23.07.2020)

L. Fulton (2021) National Industrial Relations, an update (2019-2021). Labour Research Department and ETUI (online publication). Online publication available at http://www.worker-participation.eu/National-Industrial-Relations.