Health and safety representatives in Portugal: rights

Health and safety representatives (in Portuguese, representantes dos trabalhadores para a segurança e saúde no trabalho, or SST) are workers of the company elected by all their colleagues to speak for them on safety matters: risks, equipment, accidents, training. The company must consult them in writing at least once a year, meet them every month and give them 5 paid hours a month. This guide explains how many there can be, how the election works step by step, what the company owes them and what happens if it fails. The law is Law 102/2009, Arts. 21 to 40.

What a health and safety representative is for

Sofia works in a furniture factory in Paços de Ferreira with 140 workers. For a year the band saw in the cutting section has been running without the blade guard. Two colleagues have already cut their hands. Sofia spoke to the foreman, spoke to the safety technician from the external company who visits every two months, and nothing happened. What she lacks is a voice with legal weight: a health and safety representative.

The employer must organise safety in the company (the guide on health and safety obligations of the employer covers that side). But the law also gives workers the right to take part in those decisions, and it does so through people they elect (Art. 21 of Law 102/2009). Three roles that get mixed up:

The representative does not replace the first two. They are the worker who sits at the table with management once a month and asks: "what about the saw guard?".

This representative is also not the works council nor the union representative:

How many representatives and who can elect them

The number depends on the total number of workers in the company (Art. 21(4)), unless a collective agreement sets another:

Sofia's factory, with 140 workers, elects 2 representatives. Unlike the union representative, you count the whole company, not the union members. On ships covered by the Maritime Labour Convention there is a separate table per ship (paragraph 5).

Who votes and who runs. Every worker in the company can vote and be elected, and nobody can be denied that right because of age or job (Art. 26). Candidate lists can only be of two kinds (Art. 21(2)):

1. lists from a union that has workers represented in the company;
2. lists signed by at least 20% of the workers of the company. In Sofia's factory that is 28 signatures.

Nobody can sign or be part of more than one list. Each list names as many full candidates as there are seats and the same number of substitutes (paragraph 3). Seats are shared between lists under the d'Hondt method (paragraph 1): you divide each list's votes by 1, 2, 3 and the seats go to the highest quotients. With 2 seats, if list A has 80 votes and list B has 50, the quotients are 80 and 40 for A and 50 for B; the two highest are 80 (A) and 50 (B), so one seat each. With 3 seats, the third would be A's 40: 2 for A, 1 for B.

The term is 3 years (paragraph 6). A representative can only be replaced on resignation or permanent impediment, and the seat goes to the next candidate on the same list, full members first, then substitutes (paragraph 7).

How the election works, step by step

The procedure has tight deadlines and almost all of them are backed by an offence. Here it is:

1. Call the election (Art. 27). The election is called by the workers or by a union with workers in the company. If the workers call it, the notice must be signed by 100 or 20% of the workers, whichever is lower. In Sofia's factory 28 signatures are enough.

2. Notify 90 days ahead (Art. 27(3)). Whoever calls the election notifies the date of the vote to the competent body of the labour ministry, DGERT, and to the employer, at least 90 days in advance. If Sofia wants the election on 15 January, the notice goes out by 17 October.

3. Publicity (Art. 28). DGERT publishes the notice immediately in the Boletim do Trabalho e Emprego (BTE, the official labour bulletin). The employer must post it immediately in the company and in every establishment, noting that it will appear in the BTE. Not posting it is a serious offence (paragraph 2).

4. Election committee (Arts. 29 and 30). It is made up of:

• chair: the worker with the longest service in the company (on a tie, the oldest, then the most qualified);
• secretary: the worker with the shortest service, as long as it is more than 2 years (same tie breakers);
• 2 more workers chosen by the same criteria, except in micro and small companies;
• 1 representative per list, who joins the day after the list is admitted.

Anyone who refuses is replaced by the next in line. The chair, the secretary and the 2 workers take office, after accepting, within 5 days of publication in the BTE, and the make up of the committee is notified to the employer within 48 hours. The committee runs everything: it receives and checks the lists, posts them, sets the campaign period, the number and location of polling stations, counts, proclaims and reports the results to DGERT, and settles doubts. It decides by majority, with the chair's casting vote. The chair sets the period for submitting lists, between 5 and 15 days.

5. Electoral roll (Arts. 31 and 32). Within 48 hours of receiving the notice naming the chair and the secretary, the employer hands the committee the electoral roll: the names of all workers of the company on the date the election was scheduled, by establishment if there are several. The committee posts it immediately. Not handing it over is a very serious offence (paragraph 3). Any worker can complain about errors or omissions within 5 days; the committee decides within 10 days and posts the corrections.

6. Lists (Art. 33). They are handed to the chair with each candidate's acceptance declaration. The committee decides on admission within 5 days of the end of the period; if it rejects a list, its proposers have 48 hours to fix it. Each admitted list gets a letter in order of submission and is posted immediately.

7. Ballot papers and polling stations (Arts. 34 and 35). The committee prepares the ballot papers in the 15 days before the election, with the lists in order of admission, and provides the ballot boxes. Every establishment with 10 or more workers has at least one polling station; no station can have more than 500 voters. Each polling desk has a chair, a secretary and one representative per list, all released from work for that time. Not setting up the station is a very serious offence; not releasing the desk is a serious one (paragraph 4).

8. Voting (Art. 36). It takes place at the workplace and during working hours (paragraphs 1 and 2). It lasts at least 3 hours and at most 5, with a timetable set by the committee 5 days before, and closes by 9 pm (paragraph 3). With shifts, the night shift votes first (paragraph 4). Each worker votes within their own working hours and gets the time needed (paragraph 5). Companies with scattered establishments vote on the same day and at the same time, or at least open the boxes at the same time (paragraphs 6 and 7). Voters are recorded in a dedicated document (paragraph 8). Blocking the vote at the workplace is a very serious offence; not letting people vote during working hours is a serious one (paragraph 9).

9. Count, minutes and publication (Arts. 37 to 40). The count is immediate, desk by desk and then overall by the committee. Everything goes into minutes signed by all. The committee posts the names of the elected representatives and a copy of the minutes for 15 days where the vote took place and, within the same period, sends them to DGERT and to the company's management. DGERT registers and publishes the result in the BTE. If the employer opposes the posting, that is a serious offence (Art. 39(3)). The representatives only start their duties after that publication (Art. 40).

In short, Sofia and 27 colleagues sign the notice in October, the election is in January, and the 2 representatives take office when the BTE comes out. From then on, the company has concrete obligations.

What the representative can do: 6 concrete rights

1. Credit of 5 paid hours a month (Art. 21(8))

Each representative has 5 hours a month for the role. The common rules for representation structures apply (Art. 408 of the Labour Code):

• they count as effective service, including for pay (paragraph 2). Sofia earns 1,000 euros gross for 40 hours a week, that is 5.77 euros an hour; the 5 hours are worth 28.85 euros and are paid as if she were on the cutting line;
• she notifies the company in writing 2 days ahead, unless there is a valid reason not to (paragraph 3);
• anyone in more than one structure (for example, also on the works council) does not add up the credits (paragraph 4).

If the 5 hours are not enough, absences for the role are justified and count as service, but unpaid (Art. 409(1)). They are notified in writing 1 day ahead or within the following 48 hours if unforeseeable; without notice, the absence becomes unjustified (paragraphs 3 and 4).

2. Monthly meeting with management (Art. 25)

The representatives have the right to meet the company's management body at least once a month to discuss safety and health (paragraph 1). Each meeting gets minutes signed by everyone present (paragraph 2). This meeting does not use up the time credit (paragraph 3). Not meeting or not keeping minutes is a serious offence (paragraph 4).

An honest note: Art. 25(3) refers to "paragraph 7 of Article 21", but the time credit now sits in paragraph 8, because Law 146/2015 added the paragraph on ships and shifted the numbering. The cross reference is out of date; the meaning is clear.

At the first meeting, Sofia raises the band saw. It goes in the minutes. At the second, she asks what has been done. That goes in the minutes too. That record is what later counts in a complaint to the ACT.

3. Written consultation, at least once a year (Art. 18)

The employer must consult the representatives in writing, beforehand or in good time, and at least once a year, on 12 matters (paragraph 1):

• the risk assessment, including for groups exposed to special risks (item a);
• safety and health measures before they are put in place, or as soon as possible if urgent (item b);
• measures with an impact on technology and job roles (item c);
• the training programme on safety and health (item d);
• the appointment of the employer's representative who follows the safety service (item e);
• the appointment and removal of workers with safety duties (item f) and of those in charge of first aid, fire fighting and evacuation (item g);
• the type of safety service and the use of external services (item h);
• the protective equipment to be used (item i);
• the risks and the prevention measures and how they apply (item j);
• the annual list of accidents that were fatal or caused more than 3 working days of incapacity (item l) and the reports on those accidents (item m).

For this, the company gives access to the recorded technical information and to collective medical data, not individualised, and to information from the ACT and other bodies (paragraph 2). The opinion is due within 15 days, a deadline the employer can extend for complex matters (paragraph 3); once the deadline passes with no opinion, the consultation is deemed done (paragraph 5). If the company rejects the opinion on items e), f), g) and h), it must give written reasons (paragraph 4). Everything goes into a dedicated register, on paper or digital (paragraph 6).

And outside the annual consultation: the worker and the representatives can, at any time, submit proposals to reduce any risk (paragraph 7). Sofia's unguarded saw fits here.

Failing to consult is a very serious offence (paragraph 8); failing to give access to information, to justify a refusal or to keep the register is a minor offence (paragraph 9).

4. Up to date information (Art. 19)

Representatives, like any worker, are entitled to up to date information on the risks and the prevention measures, the instructions in case of serious and imminent danger and the emergency measures, first aid, evacuation and fire fighting, with the workers in charge of them (paragraph 1). Not giving this information is a very serious offence (paragraph 7).

Linked to this, a rule that protects everyone and that Sofia should know: nobody can be penalised for leaving the workstation or a dangerous area in case of serious and imminent danger, nor for taking steps to protect themselves or their colleagues (Art. 17(2)). If the saw starts throwing parts, stopping is a right, not an absence.

5. Paid training (Art. 22)

Representatives are entitled to ongoing training for the role (paragraph 1). The employer provides the conditions and, if needed, paid leave; it is only unpaid when another body pays a specific allowance (paragraph 2). The employer and the unions can ask public services for support with this training (paragraph 3). Not providing training is a serious offence (paragraph 4).

6. Facilities, means and posting (Art. 24)

The company's management provides the representatives with adequate facilities and the material and technical means they need (paragraph 1). Representatives can distribute information on safety and health and post it in a dedicated place (paragraph 2).

If the collective agreement provides for it, there can also be a safety and health committee with a joint make up, that is, the same number of members from the company and from the workers, and the elected representatives sit on it (Art. 23).

Protection: dismissal, transfer and retaliation

In March, two months after Sofia takes office, the company tells her she is moving to the Lousada plant "for production needs". In April it opens disciplinary proceedings against her for "disrespect to management" after she posted a notice about the saw. Can it?

Health and safety representatives are a collective representation structure of the workers, alongside unions and works councils (Art. 404(c) of the Labour Code). So they get the same protection:

1. Dismissing, transferring or penalising a worker for exercising rights in collective representation structures is prohibited and void (Art. 406(1)(b)). Serious offence (paragraph 2). The company risks a fine of up to 120 days and the director, manager or head responsible risks up to 1 year in prison (Art. 407).
2. Transfer of workplace only with Sofia's consent, unless the establishment where she works closes or relocates in whole or in part (Art. 411(1)). The company notifies the transfer to the structure with the same notice it gives the worker (paragraph 2). Serious offence (paragraph 3). The order to Lousada is worthless without her yes. See the guide on workplace relocation.
3. Preventive suspension during disciplinary proceedings does not stop Sofia from entering the premises and carrying out her duties as representative (Art. 410(1)). The same applies if there are court proceedings over alleged abuse of those duties (paragraph 2).
4. If she is dismissed, an injunction suspending the dismissal is only refused if the court sees a serious probability of just cause (Art. 410(4)), the case is urgent (paragraph 5) and, if the dismissal is unlawful, Sofia chooses between reinstatement and compensation never below 6 months of base pay and seniority payments, calculated under Art. 392(3) or the collective agreement (paragraph 6).
5. Presumption of dismissal without just cause (Art. 410(3)): the law grants it to candidates and members of the governing bodies of a union, or anyone who was one less than 3 years ago. [Common interpretation:] a health and safety representative who is not a union officer does not get this presumption under this article, but keeps points 1 to 4; and if the real reason for the dismissal is the representative activity, the dismissal is void under Art. 406.

If the company fails to comply with the above, the representatives or any worker can file a complaint with the ACT, which enforces the offences under Law 102/2009 and the Labour Code, and go to the labour court. Fines follow the table in Art. 554 of the Labour Code, according to seriousness and turnover.

If, despite everything, there is a work accident, the minutes of the meetings and the representatives' written opinions are the proof that the company knew about the risk.

Checklist: for the representative and for the company

If you are a health and safety representative:

1. Check that the result came out in the BTE. Before that you have no duties and no credit (Art. 40).
2. Schedule the monthly meeting with management and insist on signed minutes. Keep copies.
3. Use the 5 hours with 2 days written notice. Do not spend them on the monthly meeting, which is separate.
4. When the company consults you in writing, reply within 15 days. If you do not, the consultation counts as done.
5. Do not wait for the annual consultation: propose any risk reduction measure in writing (Art. 18(7)).
6. Ask for the annual list of accidents and the reports (Art. 18(1)(l) and (m)).
7. If you are transferred or face proceedings, reply in writing citing Arts. 406, 410 and 411 of the Labour Code.

For the employer: a health and safety representative is a cheap ally. It costs you 5 hours a month per representative, one monthly meeting with minutes and one written consultation a year. In return you have someone who tells you where the risk is before the ACT or the insurer finds it. Your duties in the election are objective: post the notice, hand over the electoral roll within 48 hours, let the vote take place at the workplace and during working hours and release the polling desk. Failing the roll or the vote is a very serious offence. After the election, you cannot transfer the representative without consent or use disciplinary proceedings as an answer to a posted notice.

For doubts about how a collective agreement applies to the number of representatives or about a disputed election, the union or an employment lawyer can help. But the deadlines and the basic rights are all in the law and do not depend on the company's permission.