Archive:Public employment - Portugal

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<Introduction: simple language, not too long, kind of executive summary>

Regional and administrative organisation

Introduction

The Portuguese Republic has been a member of the EU since 1986. Its territory includes the Azores and Madeira archipelagos. According to the Constitution, which dates back to 1976, the Portuguese Republic shall be a democratic state based on the rule of law, the sovereignty of the people, plural democratic expression and organization, respect for and the guarantee of the effective implementation of fundamental rights and freedoms, and the separation and interdependence of powers, all with a view to achieving economic, social and cultural democracy and deepening participatory democracy.

System of government

The President of the Republic is the Head of State elected by popular vote for a 5-year period. The Prime Minister heads the Government and submits the Government Programme to the Assembly for its approval.

The Government is the body that conducts the country’s general policy and the supreme authority in the Public Administration. It is composed of the Prime Minister, Ministers, State Secretaries and Under State Secretaries, and one or more Deputy Prime Ministers may also be included. The Prime Minister is appointed by the President of the Republic after consulting the parties with seats in the Assembly of the Republic in the light of the electoral results. The remaining members of the Government are appointed by the President of the Republic upon a proposal from the Prime Minister. The Assembly of the Republic is a single-chamber Parliament made up of a minimum of 180 and a maximum of 230 members, elected by popular vote for a four-year term. Members of Parliament represent the whole of the country and not just the constituency for which they were elected. The Judiciary Power consists of the Courts. In addition to the Constitutional Court, there shall be the Supreme Court of Justice and the courts of law of first and second instance; the Supreme Administrative Court and the remaining administrative and tax courts and the Audit Court. There may be maritime courts, arbitration courts and courts of peace as well.

Regional Organization

Portugal is a unitary State that respects the autonomous islands system of selfgovernment and the principles of subsidiarity, the autonomy of local authorities and the democratic decentralization of the Public Administration. The archipelagos of the Azores and Madeira have been Autonomous Regions since 1976 and have their own political and administrative statutes. The State is represented in each of the Autonomous Regions by a Representative of the Republic appointed by the President of the Republic. The Regional Legislative Assembly and the Regional Government are self-Government bodies in each region. Legislative Assemblies shall be elected by universal, direct and secret suffrage in accordance with the principle of proportional representation. Each Regional Government shall be politically responsible to the Legislative Assembly of its autonomous region, and the Representative of the Republic shall appoint its president in the light of the results of the regional elections. The Constitution establishes a series of limitations to their powers. The territorial division in the Continent is made up of 18 Districts (Civil Governments), and local authorities consisting of Municipalities (Assembly and Municipal Executive). and parishes (Assembly and parish executive body).

Public Administration

According to the Constitution, the Public Administration shall seek to pursue the public interest and shall respect all such citizens’ rights and interests as are protected by law. Administrative bodies and agents shall be subject to the Constitution, and in the performance of their functions shall act with respect for the principles of equality, proportionality, justice, impartiality and good faith. The Public administration is based on administrative decentralization, without detriment to the unit of action and the government’s powers of management and supervision.

Public Administration in Portugal is regarded in an organic and material sense. In the organic sense, public administration is the system of bodies, services and State personnel and of other public bodies that regularly and constantly meet public needs. In the material sense, public administration is the work carried out by these bodies, services and State personnel.

Taking into consideration the organic sense, the Public Administration bodies are included in the following three administration levels:

1. Direct State Administration - Direct State administration includes all the bodies, services and agents that are part of the legal entity “State”, which, directly and immediately and under the hierarchical dependence of the Government, conduct an activity that responds to public needs. It has the following categories:

a) Central services - have competency at a national level, such as the General Directorates organized in Ministries;

b) Outlying services - have limited territorial competency that is the case of Regional Directorates (for Education and Agriculture, for example) or Civil Governments, whose competency is circumscribed to the geographical area in which they act. Outlying services include also those services responsible for external representation of the State (embassies and consulates).

2. Indirect State Administration - includes public entities, distinct from legal entity “State”. These entities have legal personality and administrative and financial autonomy, and it develops administrative activity that pursues State’s aims.

3. Autonomous Administration - is composed of bodies that pursue the interests of their members and act autonomously and independently. They include the Regional Administration, Local Administration and Public Associations.

Recent Reforms

Portugal has undergone a wide Public Administration (PA) reform process that started in the second semester of 2005 and in 2009 achieved its final stage as the last pieces of legislation have entered into force.

The modernization of the PA is assumed by the government as an essential piece of the strategy of growth of the country. It aims to achieve an Administration that better serves citizens and companies. In this context, it has been focusing particularly on the: Structural Reorganization of State Central Administration; Reform of the Civil Service Regime; Modernization and Administrative Simplification; Modernization of Public Management, as well as the Development of e-Administration.

The reform of the civil service regime presents the following features:

• Progressive convergence of the Civil Service Social Protection Scheme with the General Social Security Scheme;

• Abolishment of the former general mobility mechanisms and their replacement by two new mechanisms: assignment of public interest and internal mobility. Establishment of the special mobility regime;

• Reform of the attachment, careers and remuneration scheme of staff fulfilling public functions, from which should be highlighted the following:

— Alignment with the private sector with regard to the legal employment relationship;

— The status of “civil servant” is assigned to a few, special functions related to the exercise of powers conferred by public law that safeguard the general interests of the state: Military, Foreign Affairs, State Security, Criminal Investigation, Public Protection and Inspection Activities;

— Reduction in the number of general and special regime careers. Establishment of only 3 general regime careers;

— Establishment of a single pay scale made of 115 pay-steps to be used in setting workers’ basic remuneration, replacing the 22 existing pay scales with a total of 522 pay-steps.

— Replacement of a “career system” by a “position system”;

— Progressions are no longer based on seniority and career advancement and change of pay step is based on performance assessment according to available budget appropriations;

— Introduction of performance bonuses related to assessment;

• Establishment of the employment contract in public functions scheme aiming at bringing the labour legislation of PA closer to the labour regime of the private sector, highlighting collective bargaining (signing of the first two collective agreements in PA);

• Together with this new employment contract scheme a new disciplinary statute has entered into force;

• Establishment of an Integrated Public Administration Management and Assessment System (SIADAP) that, for the first time, is applicable to the assessment of services of respective managers and remaining staff. A percentage system (quotas) was set up for the differentiation of performance, including managers: 25% for relevant performance and, within this percentage, 5% for excellent performance. In case of the service itself obtaining the classification of excellent, the percentages for workers increase respectively to 35% and 10%.

Public Employment Structure

Legal Basis: Scope of Application: 1) Public Administration regulations are centrally defined and applicable to all workers performing public functions in bodies and services of Direct and Indirect State Administrations 2) Public employment laws defined centrally are also applicable, with the necessary legally determined adaptations to staff performing public functions in regional and local authorities’ administrative services.

Staff Recruitment: Recruitment and selection of human resources relies on three fundamental pillars: equal conditions and opportunities for all applicants, neutrality of Selection Boards and the use of methodologies based on technical research.

Employee Categories: There are currently three forms of public employment legal relationship in the public administration, as defined in law 12-A/2008, of 27th February.

1. Appointment:

• Lifetime tenure (permanent post);

• Transitional appointment (fixed term post).

Appointment is only effective for positions in a few well defined services: The Military (generic and specific missions of Armed Forces in permanent establishment plans); The Foreign Office; State Security Information; Criminal Investigation; Public Security; and Inspection Activities.

2. Employment contract in public functions:

• For an indefinite period of time;

• Contract for a fixed or unfixed term.

3. Limited executive tenure - performance of posts not integrated into careers, namely, managers1 and other situations such as attendance at a specific training course). Managers fill a temporary post (three year period with the possibility of renewal for equal periods of time, however top managers may not exceed 12 consecutive years in the same position). They carry out management, coordination and control tasks of public services and bodies. They need to attend specific training courses for entry.

Managers: see point 13 (Management Positions – Senior Civil Servants)

Public employment managing body

Ministry of Finance and Public Administration: is the government department whose mission is to define and conduct the financial policy of the state and the Public Administration policies. Regarding the latter it shall define, coordinate and evaluate the human resources policies in the Civil Service, in particular with regard to the regimes of public employment and professional qualification and development; define, coordinate and apply policies relative to the Civil Service, in particular in the areas related to the organization and management of services, with a view to increasing effectiveness and efficiency, the rationalization of the administrative activity and the promotion of quality in the public sectors; manage the health subsystem of the Civil Service and assure complementary social actions for Civil Service employees.

The Directorate General for Administration and Public Employment, a Direct State Administration body inside the Ministry of Finance and Public Administration, is a cross-sectional service responsible for providing study, design, coordination and technical assistance to the government in its work of defining policies relating to Public Administration.

Ministry of the Presidency: The State Secretary for Administrative Modernization is responsible for e-government policies, the fostering of Public Administration modernization and for the monitoring and evaluating of the results achieved from the actions undertaken in this field.

The Agency for Administrative Modernization is directly responsible for administrative simplification and modernization.

CEGER: Management Centre for the Electronic Government Network, is the organization responsible for the management of the Government’s electronic network, and aims to support it in the areas of information and communication technology and information systems. It reports directly to the Secretary of State of the Presidency of the Council of Ministers, by Prime Ministerial decree.

Statistics: Portugal has a population of 10.6 million people, of which 747 880 were public employees, in 2005 (77.3% in the Central Government and 22.7% in Local Government), in accordance with the following evolution:

In 2005, the number of public employees per thousand inhabitants in the Portuguese Administration (70,8) was above the community average (62,4 per thousand inhabitants). Public employment represented 13,5% of the active population, 0,5 percentage points higher than the community average.

Rights, obligations, principles and values

Principles: The pursuit of public interest without prejudice to citizens’ legitimate rights and interests is the fundamental guideline framing administrative activity.

Ten ethical principles governing administrative activity can be mentioned: the Principle of Public Service; the Principle of Legality; the Principle of Justice and Impartiality; the Principle of Equality; the Principle of Proportionality; the Principle of Collaboration and Good Faith; the Principle of Information and Quality; the Principle of Loyalty; the Principle of Integrity and the Principle of Competency and Responsibility.

Managers shall steer their work towards quality, responsibility and efficiency, as well as accountability for results.

Obligations: The general duties of state employees2 consist on the duty to pursue the public interest; the duty of neutrality; the duty of impartiality; the duty of information; the duty of zeal; the duty of obedience; the duty of loyalty; the duty of courteousness; the duty of assiduity and the duty of punctuality. Infringement of these duties gives rise to disciplinary proceedings.

Rights: The rights of workers performing public functions are not currently compiled in a single piece of legislation. As any Portuguese citizen they hold the general rights stipulated in the Constitution of the Portuguese Republic (right to life, liberty and security, freedom of speech and information, freedom of conscience, religion and cult, participation in public life, association, economic, social and cultural rights…).

In particular, the following rights shall be highlighted:

• Right of access to public service – under equal conditions and freedom, as a rule by means of open competition;

• Right of access to public positions – under equal conditions and freedom;

• Right to information – be informed, whenever so requested, about the progress of proceedings in which one is directly interested, and to know the final decisions that are taken; and access to administrative records and files, subject to the legal provisions with regard to matters pertaining to internal and external security, criminal investigation and personal privacy;

• Right to justification of acts – administrative acts must be justified expressly and in an accessible way whenever they affect legally protected rights or interests;

• Right to appeal – judicial appeal against administrative acts deemed unfavourable, harming legally protected rights or interests.

In the scope of the fulfilment of duties there are a considerable number of rights. Yet the following are to be stressed:

Rights of collective exercise

• Right to collective negotiation – negotiation between trade union associations and Public Administration on matters relating to public employment status, with a view to reaching an agreement;

• Right to trade union activity;

• Right to strike – in accordance with the decision of the trade union associations being however compulsory that the provision of the necessary minimum services in the services intended to meet the essential social needs be ensured (Armed Forces and Security Forces do not have the right to strike).

Rights connected to effective provision of work

• Right to a salary and other pecuniary benefits;

• Right to periodical remunerated holidays – this right is acquired with the constitution of the public employment legal relationship, referring, as a rule, to the service performed in the preceding calendar year (by twelve months of work, the civil servant is entitled to a period of holidays ranging between 25 to 28 working days);

• Right to vocational training – aimed at modernizing and promoting effectiveness, efficiency and quality of services, as well as developing and qualifying the human resources;

• Right to admission to an open competition – for recruitment and personnel selection for the Public Administration;

• Right to assessment – annual performance assessment for career advancement purposes;

• Right to social protection – by way of the Convergent Social Protection scheme or the General Social Security Scheme, in case of illness, maternity, paternity and adoption, unemployment, accidents at work and occupational diseases, old age (retirement), disability and death;

• Right to social benefits – complementary social action (benefits granted by the Public Administration Social Services) and health subsystems (complementary benefits to the right of protection in health ensured by the National Health Service).

Social Protection

Social Protection for staff performing public functions. Social protection for workers performing public functions is effected by their integration in the General Social Security Scheme or in the Convergent Social Protection Scheme, pursuant to the Law no. 4/2009, of 29th January.

Integration in one or other of these schemes depends upon the worker having been covered by the prior “Civil Service Social Protection Scheme” or by General Social Security Scheme. All workers admitted to public employer entities after 1st January 2006 are compulsorily framed in this latter scheme.

The social protection of workers performing public functions provides, in any of the schemes, cash benefits to substitute work incomes lost as a result of sickness; maternity, paternity and adoption; unemployment; accidents at work and occupational diseases; invalidity; old-age and death (survivor’s pension and death allowance). It also provides benefits within the scope of family protection (family related expenses; invalidity related expenses and dependence related expenses).

In the convergent Social Protection Scheme is of direct responsibility of public employers, to grant benefits relating to immediate contingencies: sickness; maternity, paternity and adoption (parenthood); unemployment; accidents at work and occupational diseases and death (relating to death allowance).

Caixa Geral de Aposentações - CGA (Civil Servants Special Pension Scheme) grants benefits relating to non immediate contingencies: invalidity; old-age; death (survivor’s pension) and benefits by virtue of permanent disabilities and death resulting from accidents at work and occupational diseases. Death allowance of the pensioner is also paid by CGA.

The payment of benefits regarding the General Social Security Scheme is incumbent upon the competent social security institutions.

Nevertheless, in case of unemployment of workers, on an appointment basis and of workers on a public function employment contract basis, who were previously civil servants, unemployment benefits are granted by social security institutions, but the respective allowances are paid by the ultimate service in which they performed functions.

Performance Assesment System

The assessment of the performance in Public Administration (SIADAP) applies to the performance of public services, their respective managers and all other staff. It is an integrated approach to management and assessment systems allowing for consistently aligning the performances of services and of those who work in them.

There are three components to the system:

• Subsystem for the Performance Assessment of Public Administration services (SIADAP 1);

• Subsystem for the Performance Assessment of managers in Public Administration (SIADAP 2);

• Subsystem for the Performance Assessment of Public Administration Employees (SIADAP 3).

SIADAP is designed for universal application throughout State, regional and local administration, foreseeing wide reaching mechanisms for flexibility and adaptation to be able to cover the specific nature of the different types of administration, public services, careers and functional areas of their staff and management needs.

The system is based on a management design for Public Administration services centred upon objectives. To this end, in assessing services, managers and all other staff, the results achieved from previously determined objectives play a key role. The results should be measured through pre-established indicators that, among other things, allow for transparency, impartiality and avoidance of discrimination.

The assessment is done annually and refers to the performance of one calendar year. This process begins with the contracting of the assessment parameters (Results and Competencies) in February. Said assessment must be made during the months of January and February of the following year.

Mobility

The mobility regime currently in force and effect includes two patterns, General Mobility and Special Mobility.

A) General Mobility

It consists of transitional modification of functional situation of the worker, within the same body or service, or between different bodies or services, based on grounds of public interest, targeting to increase effectiveness of services by way of a rational use and valuing of Public Administration human resources.

General mobility instruments are applicable to all workers with a public employment legal relationship formed for indefinite period of time – appointment or employment contract in public functions.

It may assume the form of assignment of public interest or of internal mobility:

1. Assignment of Public Interest – is applicable when a worker of a public employer entity covered by the objective scope of application of Law 12-A/2008, that lays down the regimes of job attachment, careers and remunerations (LVCR), shall fulfil transitional functions in a public or private entity excluded from the objective scope of application of the LVCR, and vice-versa.

2. Internal Mobility – it is applied when a worker fulfils provisionally functions within the same body or service or between public employer entities covered by the objective scope of application of the LVCR.

It assumes the forms of mobility in the category (in the same activity or in different activity), mobility inter categories in the same career (higher or lower category) and mobility inter careers, for a degree of complexity equal, higher or lower.

B) Special Mobility Regime

The Special Mobility Regime has been defined to frame processes for the abolishment, merger and restructuring of public services. Likewise, a general regime for the staff rationalization process has been laid down in situations where human resources assigned to some services are mismatched with regard to permanent needs and the pursuit of the objectives.

The process is developed in three phases:

1. The transition phase runs for 60 days and is intended to enable civil servants or contractual staff to resume functions without the need to attend vocational training courses;

2. The re-qualification phase has a 10 month time limit, after completed the preceding phase and is intended to strengthen professional abilities of civil servants or contractual staff by creating better conditions for employability;

3. The compensation phase runs for an indefinite period after the re-qualification phase and is intended to support civil servants or contractual staff resuming functions though they have not taken part in preceding phases. In this phase there is the possibility for employees to perform other remunerated activities (in this case receiving both public and private remuneration), although the duty of accepting the resuming of public service functions is maintained.

Graphically they can be represented as follows:

Career-Based System. Training

Career-based system is regulated in the aforementioned Act. The recruitment procedures and requirements differ depending on positions that are applied for (“regular” or senior ones). Recruitment is carried out in accordance with the principles set out in the Act.

The employment relationship of a civil service employee is established on the basis of the employment contract for an indefinite period of time or for a definite period of time. In the case of individuals taking up employment with the civil service for the first time, employment contract is concluded for a definite period of 12 months with the option of earlier termination of the employment relationship upon two-weeks’ notice.

The contract for an indefinite period of time applies generally to civil service employees who have previously had a contract a definite period of time and received a positive result of her/his performance evaluation.

After fulfilling certain conditions stated in the Act on civil service a civil service employee can become a civil servant. In this case the existing employment relationship is transformed into employment relationship on the basis of appointment.

In case of re-employment of a civil servant the employment relationship is established on the basis of her/his appointment (with some exceptions foreseen by the law).

Candidates for senior managers (directors general, directors or equivalent levels) and their deputies have to fulfill among others the following conditions:

• to have master degree (or equivalent),

• to have managerial skills,

• to have at least 6 years of professional experience including at least 3 years of professional experience at the managerial post in organizations of public finance sector (in case of directors general),

• to have at least 3 years of professional experience including at least 1 year of professional experience at the managerial post or at least 2 years at independent posts in organizations of public finance sector (in case of directors (or equivalent and their deputies).

Candidates from both public and private sector can apply for senior positions in the civil service. The contracts are set for indefinite period of time.

An open competition is organised for senior manager’s posts however some exceptions are foreseen by the law. Director deputies’ posts can be filled by civil servants (or other persons under separate law provisions) by way of transfer.

Another aspect of the administrative career is mobility. However mobility is voluntary as an element of natural staff flow there are also three types of transfers stated by the act on civil service:

• by decision of the Head of Civil Service (refers only to civil servants);

• by consent of civil service corps member within civil service;

• by consent of civil service corps member outside civil service.

Remuneration

Pay rises for civil service corps members are determined by the Government by means of annual budgetary act. Remuneration on an individual level is set by each employer (director general) and must be consistent with legal provisions regarding civil service and may take into account results of the periodical performance evaluation.

Social dialogue and system of representation

Joint Representation and Social Dialogue: On the basis of the resolution no 34 of the Tripartite Commission for Social and Economic Affairs (a main body of social dialogue), passed on the 16th February 2009, the special Sub-group on self-government administration employees and civil service was called into being. Its main goal is to work out and agree different solutions concerning self-government administration employees and civil service related to remuneration system, performance appraisal, job evaluation in particular as well as special rules concerning a labour law and funds for functioning (the presidium of the Commission has the right to charge the Sub-group with other tasks when necessary). In the Sub-group there are 14 members: 4 representatives of the government, 2 representatives of self-government administrations, 6 members of the representative trade unions organisations (Independent Self-Governed Trade Union “Solidarnos´c´” (NSZZ “Solidarnos´c´”) – 2 representatives, All-Polish Trade Union Alliance (OPZZ) – 2 representatives and Trade Union Forum (FZZ) – 2 representatives), 1 member of one of four representative employers organizations in Poland (Business Centre Club – Employers’ Union (BCC – ZP)). The Sub-group is chaired by the representatives of Government appointed by the Chair of the Tripartite Commission - the Head of the Civil Service in the Chancellery of the Prime Minister. The functioning of the Sub-group is foreseen till the end of 2011. The results of the discussions, although they are not binding for the Government, they are usually taken into account that is reflected in drawing a draft bill of law or in modifying an existing law.

Right of Civil Servants to Conclude Collective Agreements: According to the Polish legal system, especially under labour code (art 239 § 3), collective bargaining doesn’t exist in the civil service (which contains governmental administration), self-government administration (workers employed by appointment), prosecutors, judges. The wages in this professional groups are regulated by acts and decrees. The collective bargaining taking place in the public sector in another professional groups especially in education system and healthcare system, then negotiations are taking place on a agency level or in a workplace. There is no binding agreements for central government in Poland in civil service.

Recent reforms and prospects

The Act on civil service of 21st of November 2008 entered into force on 23rd March 2009 as one of the actions taken on the basis of resolution of the Council of Ministers of 2008 on the finalisation of public administration reform. The year 2009 was devoted to implementation of the provisions of the new act and to legislative work on executive acts. These regulations and ordinances refer mainly to remuneration issues, disciplinary procedures, performance evaluation, qualification procedures and procedures of cooperation between directors general and the Head of Civil Service.

Another new action taken up under the act of civil service provisions is the elaboration and implementation of strategy on human resources management in civil service. The strategy should contain diagnosis of the civil service, definition of strategic aims, implementation system and financial framework. The works on the strategy are currently being conducted.

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