Rights of trade union representatives for which the employer bears the cost but is not entitled to compensation
Remuneration of union representatives
Trade union activities
RULING Nº 73/99
3 of February of 1999
Equality encompasses the prohibition of arbitrary decisions, the prohibition of discrimination and the requirement of differentiation.
The prohibition of arbitrary decisions functions as an external check on the legislature's discretionary powers; here, the principle of equality acts as a negative control mechanism. The prohibition of discrimination does not entail the requirement of absolute equality in all situations or the prohibition of all forms of differential treatment; rather, it requires differentiation measures to be justified in terms of the certainty of the law, proportionality, justice and solidarity. Lastly, the requirement of differentiation as a means of compensating for a lack of equal opportunities means that the principle of equality performs a social function and is connected with efforts to pursue a policy of "social justice" and to put into practice constitutional provisions on the effective enjoyment of economic, social and cultural rights. Furthermore, the principle is inherent in the very concept of equal social and human dignity.
The constitutional protection of workers' fundamental rights derives logically from the social function of work. These rights may be enforced primarily against the state and other public bodies, but their enforcement also involves (and sometimes even requires) collaboration with private individuals. Employers are responsible for protecting these rights, within the limits of those risks for which firms are liable, in keeping with the requirements of the principle of proportionality.
Although the protection of workers' fundamental rights is essentially not the responsibility of private employers, in certain situations employers must help workers to assert their rights and ensure that they enjoy the freedoms and safeguards to which they are entitled.
The Portuguese Constitution does not use the expression "positive discrimination" and Article 13 of the Constitution (on the principle of equality) does not even use the term "discrimination"; however, constitutional case-law has upheld the concept of "positive discrimination" (but not the concepts embodied in other expressions, such as "positive action" or "affirmative action").
The case-law of the Constitutional Court regarding positive discrimination has covered a number of fields, such as the provision of public services, economic and social affairs, tax and financial matters and elections, and the court has examined the constitutionality of positive discrimination in cases concerning labour law, with regard to certain provisions of the so-called "Unions Act" (for example, the provision specifying that union representatives may not be dismissed without court proceedings).
In the present case, the Constitutional Court was asked to examine (with reference to a specific case) the constitutionality of rules whereby union representatives were entitled to remuneration for performing their union duties (during working hours). The judgment ruled that there had been no violation of the principle of equality, even in relation to firms which had no union representatives among their staff and which consequently did not have to bear the associated costs. The court referred to the case of firms with similar obligations stemming from the special status of student workers, who were protected by the constitutional safeguard of "equal opportunities for access and success in schooling" (Article 74.1 of the Constitution), and to the "adequate period of leave from work without loss of remuneration or other privileges" which Article 68.3 of the Constitution guaranteed to women during pregnancy and after their giving birth. Such measures were further examples of positive discrimination measures to compensate for de facto inequalities in order to achieve equal results, and could be counted among the usual vagaries of a firm's activities and risks