TRIBUNAL CONSTITUCIONAL Portugal

RULING Nº 306/03

25 of June of 2003

Headnotes:

The right to privacy (as laid down in Article 26 of the Constitution) consists principally of two subsidiary rights: the right to prevent strangers from gaining access to information about one's private and family life and the right to a guarantee that no one may divulge information about another person's private and family life, including, of course, health-related information. The right is not an absolute one, and even requiring a person to undergo medical examinations or tests may, in certain cases, be considered permissible, given the need to balance the right to privacy with other legitimate and constitutionally recognised rights or interests (such as protection of public health or administration of justice) and provided that the principle of proportionality is respected.

In the field of labour relations the right to health protection and the duty to protect and promote health (enshrined in Article 64.1 of the Constitution) justify requiring workers to undergo appropriate and necessary medical examinations in order to ensure - given the nature and type of work they do and subject to reasonable criteria - that they do not represent a risk to third parties and that, for example, the risk of accidents in the workplace is kept to a minimum and other workers or third parties are not exposed to infection. Equally the nature and purpose of a health examination must not be such that the requirement is being abused or is discriminatory or arbitrary.

However the possibility of re-opening disciplinary proceedings is not in itself contrary to the substantive aim of prohibiting unfair dismissal. Nor does it interfere with the procedural dimension of the constitutional guarantee in that the very purpose of re-opening disciplinary proceedings is to ensure observance of the formal requirements intended to safeguard the accused's defence rights.

If a court declares a dismissal unlawful, the declaration entails the restoration of the legal position that existed before the contract of employment was interrupted, and reinstatement is the natural consequence of that. Nonetheless, under current legislation the worker - and only the worker - may refuse reinstatement and opt for compensation based on length of service. The fact of having been unlawfully dismissed thus constitutes a valid reason for terminating the contract of employment at the worker's initiative. Reinstatement and compensation are not equal-ranking alternatives: compensation is a substitute for reinstatement.

Although the right to strike is by nature a collectively exercised right, it is enjoyed both by the workforce generally and by each member of the workforce. The fact that it is "normally" exercised by trade-union decision - which is not constitutionally required but is simply provided for in ordinary law - does not alter the fact that that right belongs to the workers. As a trade union declaration of strike action presupposes workers' right to strike, any renunciation or restriction of trade unions' right to make such a declaration, even on a temporary, partial or conditional basis, deprives workers of their constitutional right to strike in just the same way as a total renunciation.

Summary:

The President of the Republic sought prior review of the constitutionality of a set of Labour Code provisions approved by Parliament and submitted to him for promulgation.

The first question of constitutionality concerned the provision that job applicants or workers could be required to supply information about health or pregnancy if the particular demands of the type of work justified it. The Court held the following points to be indisputable:

i. information about a job applicant's or worker's health or state of pregnancy fell within the sphere of private life;

ii. interference in that sphere resulted not only from the obligation to undergo medical tests and examinations but also the requirement to supply information;

iii. a requirement that the job applicant or worker supply such information constituted respectively an obstacle to obtaining employment and a real legal duty on which continuation of the employment contract might depend;

iv. restricting the basic right to privacy in such a manner was constitutionally permissible only if the requirements of proportionality were observed.

Nonetheless the provision in question ought not to be found unconstitutional because, in addition to protection of the worker's or third parties' safety and health, there might be other requirements deriving from special features of the work that justified asking workers or job applicants to supply information about health or pregnancy. Another aspect of the provision was, however, contrary to the principle of proportionality. To achieve the desired outcome it would suffice to involve a doctor, who would be required to notify the employer only as to whether or not the worker was fit for the work. Employers did not themselves need to have private details about an applicant or worker. They merely needed to be informed about possible problems of entering into a contract with someone or allocating them certain tasks. A doctor's duty of professional confidentiality minimised the risk of private information being divulged inappropriately or unnecessarily. Moreover, deciding whether state of health or pregnancy rendered someone unfit for work of a particular kind would in some cases require professional expertise that, in principle, only a doctor possessed.

The second question concerned the possible unconstitutionality of the provision that disciplinary proceedings could be re-opened where the courts had declared a dismissal void. There were divergences of legal opinion and of case-law as to whether an employer who dismissed an employee and then became aware that disciplinary proceedings were void (or indeed had not taken place) should be able to withdraw the dismissal decision, re-open disciplinary proceedings, correcting defects in the initial proceedings, and possibly redismiss the employee. The President of the Republic took the view that allowing the employer to re-open proceedings could weaken workers' defence rights and significantly affected legal certainty. However, the provision in question - interpreted as non-applicable in cases where no disciplinary proceedings had taken place, and as ruling out any addition to the allegations of fault against the worker - was not unconstitutional. Firstly the longer limitation period or periods did not unacceptably affect either workers' defence rights or legal certainty, and secondly the provision did not breach the non bis in idem principle because the principle did not prevent a rehearing, or retrial in a criminal case, if a decision or judgment had been set aside for formal reasons and the grounds for setting it aside concerned the defendant.

The third question concerned the provision that an employee in an extremely small company, or in an administrative or managerial position, and whose dismissal was found by the courts to be unlawful need not be reinstated if his or her return would have an extremely adverse or disruptive effect on the company's activity. The important question was whether the constitutional prohibition of unlawful dismissal necessarily and in all cases rendered such dismissal void and consequently entitled the employee to be reinstated, or whether there were situations in which it was constitutionally permissible to depart from the reinstatement rule. Inasmuch as the provision at issue allowed employers to oppose reinstatement in certain circumstances because the employee's return to an extremely small company or to an administrative or managerial position would have "an extremely adverse or disruptive effect on the company's activity", it was not unconstitutional in a system that recognised objective reasonable grounds of dismissal. Such a mechanism did not pose a disproportionate threat to stability of employment given that it could operate only where there had been a prior decision by a court.

The fourth question concerned the constitutionality of the provision allowing the terms of collective agreements to replace the rules laid down in the Labour Code. The provision was unconstitutional to the extent that the argument for permitting the extension of the application of the terms of a collective agreement could not be used to allow those terms to replace regulations on minimum conditions (i.e. labour regulations approved by the Minister of Labour and the minister with responsibility for the relevant sector), which had an innovative standard-setting function.

The fifth question concerned the constitutionality of the provision that collective labour agreements could include no-strike clauses. The President of the Republic took the view that restriction by collective agreement of trade unions' right to call strikes raised the controversial question of whether it should be possible to renounce the right to strike, or - more precisely - the right to have strikes declared by unions that had signed such an agreement, since the right to strike was an entitlement, a freedom and a safeguard for workers under Article 57 of the Constitution. It was debatable whether workers were sufficiently well represented by their trade unions in the context of collective agreements for the unions to be considered lawfully empowered to renounce the right to strike, even temporarily (for the duration of the collective agreement) or to a relative extent (in the sense of recourse to strike action being forbidden only in matters covered by the agreement).

According to the Court, the provision at issue took in strikes called with a view to amending clauses in an agreement where circumstances had not changed; strikes called on the ground that circumstances had changed abnormally so as to render all or part of agreed clauses unfair or unduly burdensome; and strikes called in protest at a company's alleged breach of an agreement. With regard to the impact on workers, on the one hand a union, by entering into an agreement, bound its members in such a way that they could be held liable for losses caused by non-compliance with any obligation laid down in the agreement, and on the other hand if a strike was called unlawfully the striking workers could be deemed to have absented themselves without good reason, thus incurring loss of pay or seniority. The provision in question, given its scope and implications, had to be regarded as incompatible with the constitutional right to strike, which was an inalienable right of workers. The provision was therefore contrary to Article 57.1 of the Constitution.

The sixth question concerned the constitutionality of the provision on cessation of the effects of a collective labour agreement after the expiry of the term of the agreement (i.e. the validity of such effects after the expiry of the agreement). Under the provision, if a collective agreement had expired and no fresh agreement had been concluded, or process of arbitration begun, the existing agreement ceased to have effect. That appeared to contravene the provisions and principles of Articles 56.3 and 56.4 of the Constitution, for while the legislature had wide discretion in this field, the scope of the provision was such that, in practice, it risked calling in question the essence of the constitutional safeguard that labour relations were traditionally regulated by collective agreement. However, the Court considered that the legal solution concerned was reasonable and balanced inasmuch as the period of time after expiry of the agreement was kept within reasonable limits. It was merely a subsidiary solution (that is to say, one that applied when no other provision applied) allowing a period of up to two and a half years between denunciation of an agreement and the beginning of arbitration. Thereafter, for one party unilaterally to require that the other continue a relationship against its will would be incompatible with the principle of the parties' independence, which was fundamental to collective agreements.

The seventh question concerned the constitutionality of provisions on transitional arrangements for standardising collective labour agreements, there being possible infringement of the principle of trade unions' independence and their representative role under Article 56.1 and of the right under Article 56.3 of the Constitution to conclude collective agreements. The Court held that allowing an agreement to be terminated against the will of its signatories simply because a majority of workers in the company or sector had chosen to apply a different agreement concluded by another trade union was an unacceptable infringement of the constitutionally recognised right to collective bargaining. The provisions were therefore unconstitutional, being contrary to Articles 56.1 and 56.3 of the Constitution.

Supplementary information:

The judgment was the subject of much debate among the 13 Constitutional Court judges and all the decisions were taken on a majority vote. The Court having found four of the impugned provisions of the Labour Code to be unconstitutional, the President of the Republic exercised his veto and sent it back to Parliament