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PORTUGAL - Appraisal of the legality of collective bargaining provisions and of the arbitration award

August 8th 2014


Under the powers provided for in article 479º of the Labour Code and article 3º, paragraph i) and j) of the organic law of the Commission for Equality in Labour and Employment - CITE approved by Decree-Law No. 76/2012, 26th of March, which consists in the appraisal of the legality of collective bargaining provisions and of the arbitration award in mandatory and necessary arbitration proceedings, both with regards to their compliance with equality between men and women in labour requirements, whenever there is suspicion of discrimination, as required by Labour Code, CITE is, since April 2011, coordinating a working group within its tripartite commission, comprised of representatives of the social partners, of the Secretary of State for Public Administration and the Secretary of State for Equality, Labour Inspectorate (ACT), Directorate General for Employment and Labour Relations (DGERT) and Commission for Citizenship and Gender Equality (CIG), to do the following tasks:

  • Appraisal of all collective agreements (IRCTn), in the first 30 days after its official publication, or arbitration awards (DA) published in the Bulletin of Labour and Employment (BTE) fortnightly and drafting legal opinion on each of the applicable contractual provisions containing evidence of discrimination on the grounds of gender or by infringement of the legal regime of parenting.
  • Meeting of the tripartite working group for decision making, followed by drafting of a reasoned opinion to be sent to public prosecutor in order to promote a judicial procedure to declare such clauses null and void and to eradicate them from the collective agreement.

Making use of this legal power, the Commission for Equality in Labour and Employment - CITE has already instigated several claims regarding collective agreements and some actions have been brought before the Courts by the public prosecutor in that respect.

Social partners showed some discomfort resulting from the fact that they were being faced with lawsuits, incurring in expenses, such as legal costs and court fees. However, from a legal point of view, the social partners did not contest the position of CITE’s tripartite commission and the clauses declared null and void by the courts were eradicated from the collective agreements.

Considering this discomfort of the social partners but also the conviction of the majority of CITE’s members about the unlawfulness of some of the clauses in the collective agreements related with equality between men and women and the need and importance of changing this scenario, reinforced by court decisions on this subject, CITE decided to make a proposal to the Ministry of Labour to undertake a legislative amendment in order to change some procedures of this legal power.

It was proposed that, after the appraisal of the collective agreements and decision about the unlawfulness of certain clauses by the tripartite commission, the social partners would have 60 days to assess and change the clauses that themselves recognised as illegal and republish the amended collective agreement in the Bulletin of Labour and Employment (BTE).

This legislative amendment came into force on 1 August 2012 (Law n.º 23/2012, 25 of June). After this change the working group within CITE tripartite commission has also the following tasks related with the appraisal of the collective agreements:

  • Preparation of reports for prior hearing regarding clauses that may be considered illegal, and which the parties may challenge or promote its change within 60 days.
  • Preparation of recommendations to the parties to amend the clauses where there are inadequacies to the legislation, i.e. terminology, phrases or wording of clauses that although can not be considered illegal are inadequate to the law or new legal concepts of gender equality and parenting.

Almost a year over this legislative change, CITE can say that it was very timely and with good results, since all parties that have been notified by CITE to amend collective agreements clauses have been available to do it voluntarily and republishing the amended collective agreements in BTE.

CITE also noticed that the collective agreements that were recently published or republished in BTE and that had never been appraised by CITE, the clauses regarding gender equality and parenting have been written according to the legal rules.

In conclusion, the result of this tripartite work is that more collective agreements have been published without unlawful clauses regarding equality between men and women which reflects the increased awareness of the social partners to this subject within the collective bargaining.