Worker participation - Portugal

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José Miquel Cabeças, DEMI - Faculdade de Ciências e Tecnologia / UNL, Lisbon, Portugal


Introduction

This article looks at the concept of worker involvement within management processes [1]. The article goes beyond the concept of involvement of workers in management processes and broadens its scope to information and consultation, mainly with respect to Occupational Safety and Health (OSH) related matters.

Worker involvement is addressed at three levels: cross-industry, sectoral and company. Portugal has a system of social dialogue with a high incidence of workplace-based employee representation through work councils (comissões de trabalhadores) and trade union delegates (representantes/delegados sindicais). There are committees or councils alternative bodies for safety and health elected by the workforce.

The article describes both direct and indirect participation forms with a focus on formal participation structures (legal instruments).

Regulatory framework for worker participation

Employee participation is referred to in Council Directive 2001/86/EC [2] and complements the Statute on the European Company with regard to the involvement of employees. Several models of participation by agreement are possible, the most important is the board-level representation of employees. If there is no arrangement, a set of standard rules on worker involvement becomes applicable.

Information and consultation

At the international level, regulatory provisions on worker participation are contained in Article 19 of ILO Convention C-155 [3]. Article 12 of the (non-binding) ILO Recommendation R-164 [4] describes more specific rights and possibilities for employees and their representatives with respect to worker participation. Recommendation R-129 contains general recommendations on communication between employers and workers [5].

The European Directive 2002/14/EC [6] complemented by Directive 89/391/CEE [7] establishes a general legal framework for informing and consulting employees in the European Community. The directive makes it a requirement for employers to inform and consult employees via the workers’ representatives in the company, in three specific areas:

  • the recent and probable development of the undertaking's or the establishment's activities and economic situation;
  • the situation, structure and probable development of employment and any anticipatory measures envisaged;
  • decisions likely to lead to substantial changes in work organisation or in contractual relations.

The Directive was transposed into Portuguese law by the

  • Law 7/2009 of 12 de February, on the approval of the revision of the Labour Code [8];
  • Law 102/2009 of 10 September 2009 on new legal rules governing the promotion of health and safety in the workplace [9];
  • Law 59/2008 of 11 of September 2008 on the a new employment contract in public functions system (Regime do Contrato de Trabalho em Funções Públicas) [10].

The Portuguese Decree Law 7/2009 and Law 102/2009 apply solely to the private sector and the decree Law 59/2008 regards the public sector.

The main legal source for worker information and consultation on OSH on a European level is the OSH Framework Directive 89/391/EEC [11]. Worker participation is a fundamental part of the OSH management framework promoted in this directive. In Portugal the Framework Directive was transposed by Law 102/2009 of 10 September 2009 on “Legal status of the promotion of safety and health at work” [12]. The Law formed the basis for a thorough reform of the legislation on health and safety at work.

With regard to workers’ consultation and workers' representative rights the Portuguese law provided for the setting up of safety and health commissions (comissão de segurança e de saúde no trabalho) [13] and safety and health employees representatives (representantes dos trabalhadores para a segurança e a saúde no trabalho) [14].

All Portuguese Decrees implementing the Framework Directives also contain provisions on dialogue between employers and workers as well as on workers’ consultation.


OSH and worker participation

The Portuguese system of social dialogue in the private sector consists of three levels: cross-industry, sectoral and company. This institutional system of negotiations at various levels between the social partners results in the conclusion of collective labour agreements.

Cross-industry level

The workers´ participation and involvement at cross-industry level takes place in the negotiation and joint consultation committees, which are composed of government representatives and the representative trade union organizations. The Economic and Social Council (CES - Conselho Económico e Social) [15] is a constitutional body for consultation and social agreement. The main goals are to promote the participation of economic and social agents in decision-making procedures of the organs of sovereignty, within the scope of socioeconomic issues. It is the space for dialogue among the Government, Social Partners and remaining representatives of an organised civil society par excellence.

The Constitution of the Portuguese Republic (Article 92) grants the CES two types of competencies, one consultative and the other of social agreement. Its consultation competencies are based on the participation of the most representative organisations in Portuguese society and economic agents and are carried out by drafting opinions, requested by the Government or other organs of sovereignty, or upon its own initiative. Within the scope of this competency, the CES expresses its opinion about the drafts of the programmes and policies for social and economic development, Portugal’s positioning within the European institutions with regard to these policies, the use of European funds at national level and the regional development policy.

The competency for social agreement aims to foster social dialogue and negotiation between the Government and Social Partners – trade unions and employer associations – and is exercised based on tri-party negotiations with representatives of such bodies, during which legislation projects are appraised with regard to social and labour matters, for which social agreements are then entered into [16].

The Social Partners, i.e. Government, employer associations and trade unions are part of the Standing Committee on Social Agreement (CPCS - Comissão Permanente de Concertação Social), whose main task is to foster dialogue and social agreements [17]. The activities developed at the CPCS are carried out in several phases, namely the proposal and scheduling of the issues to be handled and the definition of the most suited methodology for analysis based on a work timelines either annual or legislature, which is accepted by all members. Employment policies, vocational training, social welfare, tax and public administration policies are included among the matters to be discussed.

The composition of the Standing Committee on Social Agreement is composed by government members, trade union members and employer association’s member [18]. The board is responsible for issuing an opinion within their competence, on the plan and report on activities, the annual budget, report, economic projections, action programmes and regulations, quality policy and the policy of human resource training.

Sectoral level

At the sectoral level there is no workers participation and involvement structures oriented to occupational health and safety aspects. Collective negotiations at sectoral level between unions and employers may contain some clauses concerning occupational health and safety (see for example the collective bargaining agreement in the Portuguese banking sector [19]).

Collective labour relations in the public sector are regulated by Law 59/2008 of 11 September, on a new employment contract in public functions system (Regime do Contrato de Trabalho em Funções Públicas) [20].

Company level

Workers participation and involvement at enterprise level may be based on company agreements with union representatives or based on safety and health commissions at company level. Three different types of workers participation may be identified at company level: (i) Workers' representatives for safety and health at work (representantes dos trabalhadores para a segurança e a saúde no trabalho) [21]; (ii) The bipartite safety and health commissions (comissões paritárias de segurança e saúde no trabalho) [22] constituted by workers' representatives for safety and health at work and the employer, resulting from a collective bargaining agreement (acordo de negociação coletiva); and (iii) Ad hoc safety and health commissions, resulting from internal unions or company agreements.

The company agreements are established between the management of companies and union representatives and contain some clauses also addressed to occupational health and safety.

According to Law 102/2009 of 10 September 2009 [23], workers' representatives for safety and health at work shall be elected at company level by the workers, by direct and secret vote, every three years. Only lists submitted by unions that have represented workers in the company, or lists that have subscribed at least 20% of the workforce, can compete. For the period 2004-2011, 656 organizations in Portugal elected workers representatives for safety and health at work and 3.366 workers were elected [24].

According to the same Law, occupational safety and health committees can be established, by collective agreement, of equal composition. The occupational safety and health committees are constituted by workers' representatives for safety and health at work, according to the proportionality principle. Workers' representatives for safety and health at work have the right to meet with the administration of the company at least once a month, for discussion and analysis of issues related to occupational safety and health.

The employees' representatives are elected by direct secret vote of workers, according to the principle of representation by the Hondt method. Their number depends on company size:

  1. Companies with less than 61 employees – 1 representative
  2. Companies with 61-150 employees – 2 representatives
  3. Companies with 151-300 employees – 3 representatives
  4. Companies with 301-500 employees – 4 representatives
  5. Companies with 501-1000 employees – 5 representatives
  6. Companies with 1001-1500 employees – 6 representatives
  7. Companies with more than 1500 employees – 7 representatives.

The employee representatives for safety and health at work and the work councils (comissões de trabalhadores) are distinct. However, in companies where there are no elected representatives for safety and health at work, workers may be represented for this purpose by the company’s work council.

Indirect participation

European work councils

European work councils [25] are bodies representing the European employees of a company. Through them, workers are informed and consulted by management on the progress of the business and any significant decision at European level that could affect their employment or working conditions (2009/38/CE Directive, transpose to Portuguese legislation by Law 96/2009 [26]. Member States are to provide for the right to establish European work councils in companies or groups of companies with at least 1000 employees in the EU and the other countries of the European Economic Area (Norway, Iceland and Liechtenstein), when there are at least 150 employees in each of two Member States. A request by 100 employees from two countries or an initiative by the employer triggers the process of creating a new European work council. The composition and functioning of each European work council is adapted to the company’s specific situation by a signed agreement between management and workers’ representatives of the different countries involved. Subsidiary requirements are to apply only in the absence of this agreement.

Work councils

The Portuguese Law 7/2009 of 12 February 2009 [27] regulates the establishment of work councils in Portugal, in the private sector with a commercial or industrial purpose and non-profit enterprises such as social and health services (hospitals) and educational institutions.

In Portugal the work council is primarily a consultative body between the employer and the employee representatives. The work council consists of the employee representatives who are elected every four years by the company’s employees from a list of candidates nominated by the representative organisations of workers.

Every four years, social elections are held for personnel delegates on the work council. The candidate lists are subscribed by 20% of employees or by 100 employees.

In Portugal the work councils discusses and negotiates about the work rules and working conditions, monitors the company’s economic and financial situation, gives advice and formulates proposals on the functioning of the company. The work council is entitled to:

  1. Receive the information necessary to perform their activity;
  2. Exercise control over the management of the company;
  3. Participate, among others, in the process of restructuring the company in the preparation of plans and reports regarding training and procedures involving changes in working conditions;
  4. Participate in the preparation of labour legislation, directly or through its committees’ coordinators;
  5. Manage or participate in the management of the social work in the company;
  6. Promote the election of employee representatives to the governing bodies of public companies;
  7. Meet at least once a month, with the management of the company for issues in the exercise of their rights.

The work council must meet at least once a month with the head of the company. The chairman is usually the head of the company or someone authorised by him to take the chair, and therefore able to make binding agreements on his behalf.

Workers representatives for safety and health at work

The Portuguese Labour Code (Código do Trabalho) (Law 7/2009, of 12 February) [28] requires employers to organize activities related to safety and health at work as an important dimension of prevention and reparation of at-work accidents and occupational diseases. The organization and the functioning of the safety and health activities are defined by the Portuguese Law 102/2009, of 10 September [29].

Safety and health at work committees (comissões de segurança e saúde no trabalho), with a joint composition, may be created by collective bargaining instruments. This committee is composed by the elected workers’ representatives for safety and health at work (representantes dos trabalhadores para a segurança e a saúde no trabalho). The number of elected workers varies according to the company size. These representatives must be elected directly by a secret ballot of all workers from lists put forward by the trade unions or at the initiative of at least 20% of the workers in the undertaking. The number of representatives varies between one (for undertakings with fewer than 61 workers) and seven (for undertakings with more than 1,500 workers) [30]. The power of these workers’ representatives for safety and health at work is usually framed by the framework directive; however, in exceptional cases, foreseen by company agreement, their power may exceed the framework directive [31].

The employees' representatives are elected by by a closed ballot secret vote system by employees, according to the principle of representation by the Hondt method. Their number depends on company size:

  1. Companies with less than 61 employees – 1 representative
  2. Companies with 61-150 employees – 2 representatives
  3. Companies with 151-300 employees – 3 representatives
  4. Companies with 301-500 employees – 4 representatives
  5. Companies with 501-1000 employees – 5 representatives
  6. Companies with 1001-1500 employees – 6 representatives
  7. Companies with more than 1500 employees – 7 representatives.

The representatives for safety and health and the work councils are distinct. However, in companies where there are no elected representatives for safety and health at work, workers may be represented for this purpose by the company’s work council.

According to article 282 of the Portuguese Labour Code (Código do Trabalho) (Law 7/2009, of 12 February) [32], at each company, workers are represented, in promotion of safety and health at work, for representatives elected for that purpose or, failing that, by the work council (comissão de trabalhadores) [33].

Trade union delegation

Trade union delegates are employees of the company who are elected or appointed to represent the union-affiliated employees in dealings with the employer.

The Portuguese Law 7/2009 of 12 February [34] regulates the status of the trade union delegation of a company’s personnel. 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, although these formally needs to be ratified by the union. 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” [35].

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 [36][37].

Direct participation of workers in connection with safety and health

For the private sector, article 23 of the legal rules governing the promotion of safety and health in the workplace (Law 102/2009) [38] states that there may be a committee for safety and health at work (comissões de segurança e saúde no trabalho) in any company. If a company has no established committee the committee’s tasks are exercised by the workers’ representatives for safety and health at work (representantes dos trabalhadores para a segurança e a saúde no trabalho) [39].

In the public sector, article 135 of Portuguese Law 59/2008 [40] for collective regulation of labor mediation, guides the creation of committee on safety, hygiene and health at work (comissão de segurança, higiene e saúde no trabalho) of equal composition. The committee includes the employees' representatives for safety, hygiene and health at work (representantes dos trabalhadores para a segurança, higiene e saúde no trabalho), according to the proportion of the election results provided in articles 181.º to 195.º [41].

According to article 282 of the Labour Code [42], the employer must inform workers about relevant aspects to the protection of their safety and health and also to third parties and he/she must consult the workers´ representatives or the workers themselves, on the preparation and implementation of prevention measures [43].

According to article 25 of Law 102/2009 [44], workers' representatives for safety and health at work have the right to meet with the management body of the company, at least once a month, for discussion and analysis of issues related to safety and health at work.

The employer must consult at least twice a year the workers' representatives or, failing that, directly the workers themselves, for example, on:

  1. Risk assessment for occupational safety and health at the workplace (including consulting those groups of workers subject to special risks),
  2. Measures of safety, hygiene and health used before actual implementation in the workplace – eg. discuss technologies/work processes and their impact on safety, hygiene and health at the workplace and on workers,
  3. The company programme and organization of training in safety, hygiene and health,
  4. The appointment and dismissal of workers performing specific functions in the areas of safety, hygiene and health at work,
  5. The appointment of employees responsible for application of first aid measures, combat fire and rescue workers, their training and available material,
  6. The protective equipment and material needed at the workplace PPE,
  7. The methods used to report accidents and incidents [45][46].

References

  1. Eurofound – European Foundation for the Improvement of Living and Working Conditions (Eurofound) (2012). Home page. Retrieved on 7 December 2012, from:[1]
  2. Council Directive 2001/86/EC of 8 October 2001 supplementing the Statute for a European company with regard to the involvement of employees. Available at: [2]
  3. ILO Convention concerning Occupational Safety and Health and the working environment C155, 1981. Available at: [3]
  4. ILO Recommendation concerning Occupational Safety and Health and the Working Environment R 164, 1981. Available at: [4]
  5. ILO Recommendation concerning communications between management and workers within the undertaking R 129, 1967. Available at: [5]
  6. Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community - Joint declaration of the European Parliament, the Council and the Commission on employee representation, OJ L 080 , 23.03.2002, p. 0029 – 0034. Available at: [6]
  7. Framework Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work, OJ L 183, 29.6.1989, p. 1–8. Available at: [7]
  8. Law 7/2009 of 12 de Fevereiro, on the approval of the revision of the Labour Code. Available at: [8]
  9. Law 102/2009 of 10 September 2009 on new legal rules governing the promotion of safety and health in the workplace. Diário da República, Part I-A, 10 September 2009, No. 176. Available at: [9]
  10. Law 59/2008 of 11 September, on the a new employment contract in public functions system (Regime do Contrato de Trabalho em Funções Públicas). Available at: [10]
  11. Framework Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work, OJ L 183, 29.6.1989, p. 1–8. Available at: [11]
  12. Law 102/2009 of 10 September 2009 on new legal rules governing the promotion of safety and health in the workplace. Diário da República, Part I-A, 10 September 2009, No. 176. Available at: [12]
  13. Law 102/2009 of 10 September 2009 on new legal rules governing the promotion of safety and health in the workplace. Diário da República, Part I-A, 10 September 2009, No. 176. Available at: [13]
  14. Law 102/2009 of 10 September 2009 on new legal rules governing the promotion of safety and health in the workplace. Diário da República, Part I-A, 10 September 2009, No. 176. Available at: [14]
  15. The Economic and Social Council (CES - Conselho Económico e Social; no date). Home page. Retrieved on 1 March 2013, from: [15]
  16. The Economic and Social Council (CES - Conselho Económico e Social; no date). Home page. Retrieved on 1 March 2013, from: [16]
  17. Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community - Joint declaration of the European Parliament, the Council and the Commission on employee representation, OJ L 080 , 23.03.2002, p. 0029 – 0034. Available at: [17]
  18. Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community - Joint declaration of the European Parliament, the Council and the Commission on employee representation, OJ L 080 , 23.03.2002, p. 0029 – 0034. Available at: [18]
  19. The collective bargaining agreement in the Portuguese banking sector (acordo colectivo de trabalho do sector bancário). Available at: [19]
  20. Law 59/2008 of 11 September, on the a new employment contract in public functions system (Regime do Contrato de Trabalho em Funções Públicas). Available at: [20]
  21. Law 102/2009 of 10 September 2009 on new legal rules governing the promotion of safety and health in the workplace. Diário da República, Part I-A, 10 September 2009, No. 176. Available at: [21]
  22. Law 102/2009 of 10 September 2009 on new legal rules governing the promotion of safety and health in the workplace. Diário da República, Part I-A, 10 September 2009, No. 176. Available at: [22]
  23. Law 102/2009 of 10 September 2009 on new legal rules governing the promotion of safety and health in the workplace. Diário da República, Part I-A, 10 September 2009, No. 176. Available at: [23]
  24. Alves, P.M. (2013). A participação dos trabalhadores em segurança e saúde no trabalho em Portugal. IV Workshop Segurança e Saúde Comportamental, 4 June 2013. Lisbon, Portugal: ISCTE (Instituto Superior de Ciências do Trabalho e da Empresa) – IUL (Instituto Universitário de Lisboa)
  25. European Commission's DG for Employment, Social Affairs & Inclusion (no date). Employee Involvement - European Work Councils. Retrieved on 1 March 2013, from: [24]
  26. Law 96/2009 of 3 September on European Works Councils. Available at: [25]
  27. Law 7/2009 of 12 de Fevereiro, on the approval of the revision of the Labour Code. Available at: [26]
  28. Law 7/2009 of 12 de Fevereiro, on the approval of the revision of the Labour Code. Available at: [27]
  29. Law 102/2009 of 10 September 2009 on new legal rules governing the promotion of safety and health in the workplace. Diário da República, Part I-A, 10 September 2009, No. 176. Available at: [28]
  30. ETUI - European Trade Union Institute (2013). Workplace Representation. Retrieved on 4 March 2013, from: [29]
  31. EWCO – European Working Conditions Observatory (22-10-2012).Portugal: EWCO comparative analytical report on Information, consultation and participation of workers concerning health and safety. Retrieved on 4 March 2013, from: [30]
  32. Law 7/2009 of 12 de Fevereiro, on the approval of the revision of the Labour Code. Available at: [31]
  33. Law 7/2009 of 12 de Fevereiro, on the approval of the revision of the Labour Code. Available at: [32]
  34. Law 7/2009 of 12 de Fevereiro, on the approval of the revision of the Labour Code. Available at: [33]
  35. ETUI - European Trade Union Institute (2013). Workplace Representation. Retrieved on 4 March 2013, from: [34]
  36. ETUI - European Trade Union Institute (2013). Workplace Representation. Retrieved on 4 March 2013, from: [35]
  37. Law 7/2009 of 12 de Fevereiro, on the approval of the revision of the Labour Code. Available at: [36]
  38. Law 102/2009 of 10 September 2009 on new legal rules governing the promotion of safety and health in the workplace. Diário da República, Part I-A, 10 September 2009, No. 176. Available at: [37]
  39. Law 102/2009 of 10 September 2009 on new legal rules governing the promotion of safety and health in the workplace. Diário da República, Part I-A, 10 September 2009, No. 176. Available at: [38]
  40. Law 59/2008 of 11 September, on the a new employment contract in public functions system (Regime do Contrato de Trabalho em Funções Públicas). Available at: [39]
  41. Law 59/2008 of 11 September, on the a new employment contract in public functions system (Regime do Contrato de Trabalho em Funções Públicas). Available at: [40]
  42. Law 7/2009 of 12 de Fevereiro, on the approval of the revision of the Labour Code. Available at: [41]
  43. Law 7/2009 of 12 de Fevereiro, on the approval of the revision of the Labour Code. Available at: [42]
  44. Law 102/2009 of 10 September 2009 on new legal rules governing the promotion of safety and health in the workplace. Diário da República, Part I-A, 10 September 2009, No. 176. Available at: [43]
  45. Law 59/2008 of 11 September, on the a new employment contract in public functions system (Regime do Contrato de Trabalho em Funções Públicas). Available at: [44]
  46. Law 102/2009 of 10 September 2009 on new legal rules governing the promotion of safety and health in the workplace. Diário da República, Part I-A, 10 September 2009, No. 176. Available at: [45]

Links for further reading

EU-OSHA – European Agency for Safety and Health at Work, European Survey of Enterprises on New and Emerging Risks (ESENER): Managing safety and health at work, European Risk Observatory Report, 2010. Available at: [46]

EU-OSHA – European Agency for Safety and Health at Work, Worker representation and consultation on health and safety: An analysis of the findings of the European Survey of Enterprises on New and Emerging Risks (ESENER), 2012. Available at:[47]

EU-OSHA – European Agency for Safety and Health at Work, Healthy Workplaces Campaign 2012-13 – Working together for risk prevention, 2012. Available at: [48]

Eurofound – European Foundation for the Improvement of Living and Working Conditions, Health and safety in SME’s: strategies for employee information and consultation. The case of Belgium, 2010. Available at: [49]

Eurofound – European Foundation for the Improvement of Living and Working Conditions, Health and safety at work in SMEs: Strategies for employee information and consultation, 2010. Available at: [50]

Eurofound – European Foundation for the Improvement of Living and Working Conditions, Social dialogue and working conditions, 2011. Available at: [51]

Eurofound - European Foundation for the Improvement of Living and Working Conditions, Workplace employee representation in Europe, 2012. Available at: [52]

ETUI - European Trade Union Institute, The impact of safety representatives on occupational health, A European perspective. Report 107, 2009. Available at: [53]

Contributors

Jose Cabecas