TRIBUNAL CONSTITUCIONAL Portugal

RULING No. 794/13

21 of November of 2013

Headnotes:

The Constitutional Court decided not to declare the unconstitutionality of norms that have increased the normal working hours of public sector staff. These norms say that the new normal hours prevail over any special laws or collective labour regulation instruments (IRCTs) that were in effect when the norms themselves came into force. However, the Court said that inasmuch as these precepts are not included in a law with superior force, as defined by the Constitution, they cannot prevent new special laws from creating derogations from the new normal working period. Nor have they caused any alterations in the rules imposed by the Regime governing Public Sector Labour Contracts (RCTFP), or in the Executive Law that lays down the rules and general principles for matters linked to the length of working hours and the work schedules in the Public Administration.

The Court considered that there was no breach of the prohibition on reversing fundamental social rights. In its jurisprudence the Court has taken the view that this principle can only be valid when interpreted restrictively – i.e. when a change that reduces the content of social rights can be said to violate other constitutional principles as well. To accept any broader irreversibility of the level at which the ordinary legislator has already concretely set economic and social rights would be to almost completely destroy the autonomy of the legislative function. The prohibition on going backwards in social terms does not create its own parameter for controlling the extent to which social rights are negatively affected; when that control does take place, one must consider the parameters that can be extracted from the general principles present in the Constitution.

Nor did the Court believe there was any violation of the principle of the protection of trust. It is only possible to say that one is in the presence of a lack of protection of trust that is not in conformity with the Constitution when the underlying reasons for a norm are insufficient to justify a change in the legislator’s behaviour. After weighing up the conflicting rights and values in this case, the Court took the view that the measure which increased the normal working hours of public sector workers was designed to safeguard important public interests and could therefore not be criticised in constitutional terms.

Summary:

This was an ex post hoc review of the constitutionality of norms contained in a Law that set the normal working hours of public sector workers at eight hours a day and forty hours a week, thereby amending the norm that had been in force until the new Law took effect, under which the working day could not exceed seven hours and the working week thirty-five.

The petitioners who asked for the review argued that this increase in normal working hours was unconstitutional in its own right. They also alleged that the norm imposed an imperative minimum which superimposed itself on any special law or IRCT that was already in force, thus making it impossible to set shorter working hours, including in the future, and that this was also unconstitutional.

The Court said that this prevalence of the new rules only applies to the past, terminating the effect of any existing normative instruments that resulted in working hours shorter than those imposed by the new Law.

There continues to be a flexible working-time regime, which is subject to maximum daily and weekly limits. The latter can only be exceeded by flexitime mechanisms that are categorically imposed by law (the adaptability and hour bank systems are especially noteworthy in this respect). The Constitutional Court had already decided in the past that this arrangement does not represent an illegitimate restriction on workers’ rights to rest and leisure.

On the principle of the protection of trust, the Constitutional Court’s jurisprudence reflects the constant position that in order for a constitutional-law protection of trust to be applicable: the state (especially the legislator) must have displayed behaviour capable of generating expectations among private entities that there would be a continuity in the future; those expectations must be legitimate and justified; the private persons must have made life plans that took the prospect of the continuity of the state’s behaviour into account; and there cannot be public-interest reasons which, when weighed against the private interests, warrant the non-continuity of the behaviour that generated the expectations.

The Court accepted that an increase in normal working hours that encompasses the entire universe of public sector workers is not a form of behaviour which the targets of the legislative decision had thought foreseeable. Until this new Law was published, the clear reduction in the past of the normal working day in the public sector – a reduction that had been consolidated over the previous twenty-five years – legitimated a consistent expectation that the length of that day would remain the same. This expectation may have served as the grounds for life choices and the formation of life plans based on the continuity of the situation.

The increase in working hours was significant and capable of causing difficulties in conjugating people’s private and family lives and their work, or in the exercise of fundamental rights, such as the right to culture.

However, the Court was of the opinion that the tendency towards subjecting the regime governing Public Administration workers to the general labour rules made it possible to say that it was not entirely impossible to foresee a change like this one. The Court also said that the idea of the protection of trust can only be seen as a constitutional parameter in situations in which its breach is contrary to the very idea of the state based on the rule of law.

In the present case the Court emphasised that increases in normal working hours in the public sector generally have a positive impact, both on labour costs and in terms of cutting public spending. Given the successive measures that were taken between 2010 and 2013 in order to restrain expenditure, and the evolution in the working conditions of Public Administration staff and the legislation governing them, the Court felt that any expectations as to the continuity of past practices were not adequately founded on consistent reasons.

The Court pointed out that the challenged measures formed part of a “package of measures” designed to contain public spending included in the Seventh Revision of the Adjustment Programme for Portugal set out in the 2011 Memorandum of Understanding on Specific Economic Policy Conditionality (MUSEPC). Given the economic/financial crisis situation facing the country, it was correct to attach substantial weight to these objectives of reducing overtime pay and ensuring pay restraint.

The Court was not unaware of the depth of the sacrifice which the legislative changes imposed on public sector workers, but said that it was not clear that any legitimate expectations on their part should prevail over the need to protect the public interests underlying those legislative amendments.

The allegation of a violation of the principles of equality and proportionality was based on the assumption that the working-time regime applicable to private sector workers under the Labour Code establishes a sub-regime in which there are maximum limits, but these can be derogated from by collective labour agreements (IRCTs), whereas the regime approved by the Law containing the norms before the Court created a sub-regime of imperative minimum limits from which there could be no such derogation.

The Court was of the opinion that these amendments did not in fact change the solution involving maximum limits subject to derogation. The maximum limits on normal working hours can still be reduced by IRCTs, without any cut in the workers’ pay.

On the alleged breach of the right to be paid for one’s work, the Court considered that there was an obvious decrease in hourly pay (because more hours are now worked for the same salary), and that this has implications for overtime pay, but that there was no change in the amount of money full-time public sector workers receive in basic pay each month. Even where part-time work (seen as a fraction or percentage of normal full-time working hours) is concerned, the changes have meant an increase in the normal daily and weekly time that part-time workers spend working. This increase is proportional to that laid down for full-time public sector workers and, as is the case for full-time staff, does not imply a nominal pay cut, but does mean an increase in the number of hours worked.

The Constitutional Court recalled its own jurisprudence on the question of the right to be paid, particularly with regard to Public Administration workers. That jurisprudence particularly notes that the Constitution does not contain any rule establishing a guarantee that salaries cannot be reduced per se. The Court said it was aware that increasing normal daily working hours can lead to additional expenses for workers (transport, caring for elderly or young dependents, etc.), but that the main disadvantage they suffer as a result of the norms in question is in terms of the time they have available for themselves, their families and the exercise of a range of other fundamental rights (the right to the free development of one’s personality, the freedom to create and enjoy culture, and so on).

The Court considered that the real loss of pay was limited to that earned by doing overtime. It attached value to this fact, given the various effective pay cuts the universe of public sector workers had suffered in recent years. However, it said that the payment of overtime is not included in the qualitative concept of remuneration, and so the constitutional guarantee that salaries cannot be reduced does not apply.

As such, the Court held that the reduction in the amounts of money effectively received in payment for overtime work was not a decisive element that would cause the norms to be unconstitutional.

Supplementary information:

This Ruling was the object of one concurring and six dissenting opinions (the Court’s Plenary is composed of thirteen Justices). The concurring Justice based her position on the opinion that the content which the Ruling says the norm possesses is not to be found in the letter of the law, but that it was acceptable for the Court to correctively interpret the literal text in such a way as to arrive at an interpretation under which the norm is in conformity with the Constitution. She considered that whenever possible, constitutional judges should refrain from invalidating norms, on condition that they can find other interpretative mechanisms with the ability to avoid the effects that a declaration of unconstitutionality would entail. In the present case, she considered that the legislator had unequivocally demonstrated its intention to allow special laws and collective labour agreements that establish derogations from a maximum normal working schedule of eight hours a day and forty hours a week, in a sense that is more favourable to the public sector workers concerned, to remain in force. To her mind, this meant that it would not make sense for the Constitutional Court to insist on a declaration of unconstitutionality. She said that even if the constitutional judge were to deduce that the norm possesses an unconstitutional prescriptive content, he/she could (and in this Justice’s opinion, should) interpret it in a way that places it in conformity with the commands and obligations imposed by the Constitution.

The dissenting Justices accepted that the increase in the working day is not in itself unconstitutional, but argued that the norm also prohibits special laws and IRCTs from establishing shorter normal working hours. They said that precluding the possibility that IRCTs can set a more favourable regime means that this normative solution is in breach of the constitutional right to collective bargaining. They considered that there is an effective elimination of the concrete exercise of the fundamental right to enter into collective labour agreements, which they said cannot be overcome by an interpretation under which the norm is in conformity with the Constitution.

Cross-references:

Rulings nos. 128/09 (12-03-2009); 304/01 (27-06-2001); 3/10 (06-01-2010); 338/10 (22-09-2010); 396/11 (21-09-2011); 187/13 (05-04-2013); 474/13 (29-08-2013); and 602/13 (20-09-2013).