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Information and Consultation Employees' Representatives - Shop stewards - With the coming in force of the Labour Code, on the 1st of December 2003, the Portuguese State took the opportunity to, in time, transpose into the Portuguese internal law, some of the Directives, namely the Directive 2002/14/CE, of 11 March, target of our work. Despite the speed demonstrated with the inclusion of the legal provision, article 503 of the Law No 99/2003, of 27 August, the transposition of the content of the Directive did not deserve however, from the Portuguese legislator, the attention required. Article 503 Right to Information and Consultation
By analysing this article and comparing it to the text of the Directive in question we can noticed that there are some gaps and omissions in what concerns the Portuguese transposition of the Directive that establishes a general frame work concerning information and consultation of the employees within the European Community. By transposing the Directive the legislator limited himself to transcribe into the internal law the content of information and consultation neglecting the essential matters as concepts' definitions. In its article 2 the Directive presents several concepts with the corresponding definitions, essentials to the comprehension and application of the text. However, in the Portuguese law nothing is referred. Despite the omission the law makes reference to concepts as Establishment, Information and Consultation. It leaves, also, margin for doubts by indicating in article 503 No 3 that are the shop stewards the ones that should request, by written, the information on the matters on which should happen the information and consultation. Having in mind what has been already presented on who should, in our understanding, carry through the initiative according the Directive and its principles. Even so it will, in our opinion, undervalue the spirit of the Directive if the initiative is exclusively of the competence of the employees or their representatives. For such reason we would like to remit the readers to the considerations already presented regarding this issue. Facing this picture, a very important question is raised. What are the signs that should be presented so that the shop stewards request for information? It will be enough the rumours or it will be necessary something more consistent? Should the requests be sent on a regular basis? That is, when the information should be given? This because the Directive is quite clear by stating that information is given in moment, in a way and with content susceptible to allow the employees' representatives to proceed to an exam and prepare the consultation. Should the initiative depart from the shop stewards and not from the company? All these questions stay without an answer before the text of this legal provision and they deserve a thorough debate in order to reach some enlightenment. As we have already pointed out the Portuguese legislator indicates the content for information and consultation and establishes also some procedures to have in mind regarding the information phase. However, such does not happen in what concerns consultation. The consultation, based on the information gathered and in the opinion of the employees' representatives have the right to express does not have acceptance in the text of this legal provisions. In order to overcome the difficulties and until some jurisprudence is produced on this matter or if any intervention occurred, in or opinion insufficient, the employees should, on a regular basis (at least twice a year), present a request asking for information and consultation for the matters foreseen by law. This will allow the employees to be informed on the issues concerning them (according the law and the Directive). We would like to open here a bracket in this moment, once we think that this is the opportunity to do so, in order to specify that, and according what has been disposed in articles 499 and 450 of the law No 99/2003, the shop stewards are elected in the terms of the statutes of each trade union organisation, being up to the trade unions' broad of directors to communicate, in written, to the employer, informing the shop stewards identification. The content of such communication should be fixed in the places dedicated to commercial advertising. One issue raised when facing the transposition, a very relevant issue, concerns to the fact of knowing if the information and consultation, having in attention the actual text of the Labour Code, should be attributed to each shop steward, individually considered, or to the group of shop stewards. We think that such is a right that lives in the scope of action of each shop steward, individually considered. We are aware that such interpretation may lead to certain obstacles, but we cannot, at all, admit that such right is attributed in a collective way, otherwise it cannot function. We still have to add that if we supported the opposite understanding we would be attributing such right to the inter trade union commissions. We think that, and in order to prevent the possible obstacles that might occur by consecrating such right to each shop steward, individually considered, it would more suitable if the Labour Code had consecrated the figure of the trade union commission in a first approach and if it does not exist then choose by the shop steward, like happens in other procedures. However, such did not happen. Similar question is raised again in article 503 No 3 when it refers that «the shop stewards should require…», what in a first analysis could have lead us to the situation where it was necessary that the requirement be subscribed by all the shop stewards. However, and following the reasoning already presented, such will not be necessary. It will be enough that the requirement be subscribed by one of the shop stewards. We are aware that the law, namely the Labour Code is not clear regarding this matter. Requirements should be presented to the management body of the undertaking or establishment, according the reality, requesting the information elements of the referred subjects. Information will be given in written. It has been understanding, by the occasion of the Directive's transposition, that such would be the most competent way to carry through this task. Information should be presented within ten days, which has been considered, by the legislator, suitable in order that what is foreseen in the Directive can have a useful effect. It is also foreseen an exception for the information that due to its complexity justify a bigger term however, this delay cannot be superior to 30 days. We have noticed that, and once more in this case, we are, due to the weak transposition of the Directive, remitting to non objective circumstances, to situations to what, having in mind the complexity of the matters, can the term be extended. However, the law does not foresee any mechanism that evaluates, in a very quick way, the complexity or not of the matter. Article 503 No 4 tries to agglutinate the content of article 4 No 3 of the Directive itself, not determining a procedure regarding consultation, fundamental pillar in this matter and which has to be safeguarded. No 6 of the same article excludes the possibility of information and consultation to companies with certain characteristics according the terms that the Directive itself allows. In what concerns confidentiality, article 458 (Confidential Information) of the Labour Code refers that the members of the employees' representative's structures cannot reveal to others the information that has transmitted with the special reservation regarding its confidentiality. We must add that this confidentiality is maintained even after the end of the mandate. Its violation will mean civil responsibility to the one who commits such. There is, also, another disposition that adds that the employer may not transmit the information or proceed to consultation which nature is susceptible of affecting seriously the company's or the establishment's functioning - article 459 of the Labour Code. The refusal, on the employer's side in giving certain information or classifying it as confidential, compelling the worker to not divulging such information, will mean to the employer the obligation of an answer, well founded, containing the motifs for its refusal or the need to classify certain information as confidential. Both the demand of confidentiality as the refusal to give information or proceed to consultation could be impugned by the employees' representatives according the terms of the Code of Labour Procedure - article 460 of the Labour Code. The dispersion of the provisions of the Labour Code led that the matter covered by the Directive is, consequently dispersed. The systematisation of the Code imposed such.
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