Local autonomy – Right to collective bargaining and to enter into collective labour agreements – Regime governing local administration staff and agents
Constitutional principle of local autonomy;
Ight to collective bargaining and to enter into collective labour agreements;
Local authority worker;
Verification of the legal conformity of local government acts
RULING No. 494/15
7 of October of 2015
Norms that gave the members of the government with responsibility for Finance and the Public Administration the legitimacy to conclude and sign collective public-sector labour agreements for local government staff were in breach of the constitutional principle of local autonomy, and the Constitutional Court therefore declared them unconstitutional with generally binding force.
The General Law governing Labour in the Public Service (LTFP) says that collective labour agreements involving public-sector employers (ACEPs), which are a form of collective labour regulation instrument (IRCT), must be signed by representatives of the applicable trade unions, the applicable members of the government, and the representatives of the public employer in question. In municipal authorities, the competences inherent in the status of public local-government employer are exercised by the mayor. The members of the national government with the legitimacy and representative status needed to enter into collective labour agreements on behalf of public-sector employers are the Minister of Finance and the Secretary of State for the Public Administration. Giving the legitimacy to enter into collective agreements on the public side to multiple entities – i.e. not just the employer, but members of the government as well – meant that an agreement could only enter into effect if the government agreed with it.
Local autonomy is one of the fundamental pillars underpinning the territorial organisation of the Portuguese Republic, and the way in which the Constitution designs that organisation presupposes a set of local authority powers which ensures that in the fulfilment of its responsibilities, local government is relatively free from direction by the central administration. As such, the ordinary law can only condition or compress local autonomy when a national or supra-local public interest justifies it, and even then only when the uncompressible core of that autonomy is safeguarded. The Constitution makes local authorities autonomous public-sector employers, which means they must (subject, naturally, to the general terms of the law) have the power to enter into collective agreements – a power that is derived from the principle of local autonomy. Pursuant to the Constitution, within the regime governing public-sector staff the ordinary legislator created an opportunity for collective bargaining between workers’ representatives and employers (in this case, local authorities). To the extent that the norms in question limited the power of local authorities, acting in their role as employers, to enter into collective agreements with their staff, within the general limits imposed by law on the one hand but without interference from the government in the bargaining process on the other, the Court found that they entailed an unconstitutional compression of the principle of local autonomy.
The Ombudsman brought this abstract ex post facto review case before the Constitutional Court, challenging LTFP norms that subjected collective public-sector labour agreements entered into by local authorities to approval by the members of the government with responsibility for Finance and the Public Administration. This created a plural legitimacy to negotiate such agreements on the public-sector employer’s side, in that it required simultaneous intervention by members of the central government and the local-government employer. The Ombudsman argued that these norms contradicted the constitutional status of local authorities, namely in terms of the principle of local autonomy.
The Constitution says that: “The democratic organisational structure of the state includes the existence of local authorities”. Those authorities are territorial legal persons whose purpose is to pursue the interests of their local populations, and the constitutional norm requires and guarantees that they exist throughout the country. They are more than a mere autonomous state administration, inasmuch as they contribute to and form part of the democratic organisation of the state. Their existence is justified by the values ‘freedom’ and ‘participation’, in a system in which one of the basic principles is that everyone is entitled to participate in the process of taking the collective decisions which affect them. Local authorities enjoy a degree of independence from external guidelines or powers that condition them, namely those issued or exercised by the state. The European Charter of Local Self-Government says that the principle of local autonomy requires: “the right and the ability of local authorities, within the limits of the law, to regulate and manage a substantial share of public affairs”.
The “uncompressible space” within which there must be autonomy is the local area’s own affairs. However, this does not imply that local authorities cannot or should not be called on to fulfil their tasks in ways that do not conflict with state policies, because the manner in which such authorities pursue their populations’ specific interests must be conjugated with the state’s pursuit of the overall national interest. In the past the Constitutional Court had already noted that the relationship between the local authorities that belong to the autonomous administration on the one hand and the state on the other is purely one of different positions (higher and lower) in a hierarchical structure designed to coordinate different (national and local) interests, and not one of supremacy and subordination targeted at achieving a single interest – i.e. the national interest, which would thus supersede local interests.
While it is true that the Constitution requires that the attributes, responsibilities and organisation of local authorities and the competence of their organs be regulated by law, it is within the above context that the ordinary legislator must balance the pursuit of local versus national or supra-local interests, albeit its margin for doing so is very broad. In performing this task it must be guided by the principle of administrative decentralisation and recognise that local authorities possess a range of attributes and responsibilities of their own (and that their organs have competences of their own), which are designed to enable them to satisfy the specific interests of their local communities.
Local government autonomy particularly includes organisational, budgetary, asset-related, financial, fiscal, staff-related and regulatory autonomy, as well as the autonomy to consult constituents.
This is the context within which one must view the form of local autonomy expressed in the existence of specific staff rosters, albeit established in accordance with the law and containing local public servants who are subject to the applicable state regime, mutatis mutandis. This is an element of local government autonomy that is protected by the Constitution and linked to the ability of local authorities to organise their own departments and services. The guarantee that they will have their own body of staff who are not dependent on the state administration is instrumental to the ability of local authorities to fulfil their responsibilities and pursue the specific interests of their populations.
The question of constitutionality in the present case was posed by the fact that the norms made it impossible for local authorities and their staff (represented here by trade unions) to autonomously shape the respective labour regime, within the margin which the law grants to everyone who regulates collective labour agreements in the public sector. Under the LTFP, collective public-sector labour agreements entered into by local authorities govern the labour regime applicable to public servants on local government rosters. The competence to enter into and sign them pertains to local authorities, acting in their role as public-sector employers. The state is not these workers’ public-sector employer. To oblige local authorities to co-manage constitutionally enshrined dimensions of their autonomy jointly with the state administration would in fact mean emptying that autonomy of its content. The law can limit local authorities’ power to collectively contract staff, but it cannot provide for case-by-case interventions by the state in the exercise of their local autonomy. Under the norms, if the members of the government with responsibility for Finance and the Public Administration disagreed with the terms or even the very existence of a collective labour agreement, they could block the ability and freedom to enter into it in a way which the Court considered to be in breach of the principle of local autonomy. The Court therefore declared the norms unconstitutional.
One Justice concurred with the Ruling, but said that the principle of the unity of the public service regime means that the definition of the rules applicable to local government staff and agents does not fall within the body of matters that are the object of local autonomy. He said that under the Constitution this is an area of action that pertains to the national community. However, he concurred with the majority decision because the law allows local authorities to intervene in this domain in such a way as to generate new arrangements (indeed, it now gives them a new power to negotiate and enter into collective public-sector labour agreements), and the same law cannot thus condition that intervention by subjecting it to a co-decision, veto or any control of its merit by the government, failing which it would contradict the responsibilities inherent in the power of local authorities to administer their own staff.
Portuguese Constitutional Commission Opinion no. 3/82, in Pareceres da Comissão Constitucional, Volume 18.
Constitutional Court of Portugal Rulings nos. 432/93 (13-07-1993); 379/96 (06-03-1996); 329/99 (02-06-1999); 631/99 (17-11-1999); 296/13 (28-05-2013); 398/13 (15-07-2013); and 109/15 (11-02-2015).
Federal Constitutional Court of Germany Judgement no. 15 of 30 July 1958, in Entscheidungen des Bundesverfassungsgerichts, Volume 8, p. 134.