Portuguese Labour System
In recent years, Portuguese employment law has undergone many changes and adjustments. Thus, after more than 30 years of legislative reforms, the Portuguese labour system is now more flexible, particularly in terms of organizing working time.
In terms of regulations, the main law is the Labour Code, which was revised in 2009 (Law No. 7/2009 of February 12), 2011 (Law N. 53/2011 of October 13), 2012 (Law No. 23/2012 of June 25), 2013 (Law No. 69/2013 of August 30), 2014 (Law No. 27/2014 of May 8 and Law No. 55/2014 of August 25), 2015 (Law No. 28/2015 of April 14 and Law No. 120/2015 of September 1 ), 2016 (Law No. 8/2016 of April 1), 2019 (Law No. 93/2019, of September 4), 2021 (Law no. 18/2021, of April 8 and Law no. 83/2021, December 06) and 2022 (Law no. 1/2022, January 3).
Law no. 1/2022, January 3, amended the regime of justified absences from work. Thus, from January 4, 2022 onwards, employees may be absent from work for up to 20 consecutive days after the passing of their children, stepchildren, godsons (in the framework of a civil custody relation), sons-in-law and daughters-in-law.
Moreover, in case of death of an employee’s descendant or similar in first degree in the direct line or close family member, namely spouses or ascendant, employees are now entitled to receive psychological counselling in a National Health System establishment.
On another hand, law no. 83/2021, December 5, which entered into force on January 1, 2022, altered the Labour Code and the Accidents at Work and Occupational Diseases Regime regarding the teleworking regime and the right to disconnect.
With the changes set forth by this law, teleworking is now considered to be any work performed under legal subordination, in a place not determined by the company, and through the use of information and communication technologies, regardless of whether the work is performed in a fully remote basis or in a hybrid scheme. The duties that can be performed remotely and the conditions under which the company may accept the telework regime can be determined in the company’s internal rules of procedure.
If an employee (whose duties are compatible with remote working and when there are available resources to that effect) requests to start working remotely, the employer’s refusal must be delivered in writing and must contain the reasons for the refusal.
The period of duration of the teleworking agreement was also altered. As of January 1, 2021, the agreement can have a fixed-term of up to 6 months, automatically renewed for equal periods if none of the parties declare their opposition to the renewal, or a permanent duration, in which case either party can terminate it, by written notice given 60 days in advance.
The agreement shall establish the place from which the employee will usually carry out their work, which will be considered, for all legal purposes, as their workplace, and which can only be altered through a new written agreement between the parties.
On another hand, the array of employees entitled to render their work through telework when their duties are compatibles with said scheme, was extended to encompass more than victims of domestic violence and employees with children of up to 3 years.
Henceforth, non-main informal caregivers are now entitled to render their duties in telework. In companies who employ 10 persons or more, employee with children over 3 and up to 8 years old are also entitled to this scheme in the following situations: (i) when both parents meet the conditions for teleworking and provided it is performed by both in successive periods of equal duration within a maximum reference period of 12 months; (ii) in single-parent households, and (iii) in situations where only one of the parents can prove that they meet the conditions for teleworking.
The employer is responsible for providing the employee with the equipment and systems necessary for carrying out the work and with the necessary training for their use, but the employee may acquire said instruments directly, pending the employer’s approval. Regardless of the ownership of the equipment, the employer is always responsible for correcting any faults that may arise.
The employer is obligated to compensate, in full, the additional expenses that the employee has proved to have borne with the acquisition or use of the equipment. This compensation is considered a cost for the employer for tax purposes.
The employer is also obligated to respect the privacy, working hours and rest time of the employee and their family, as well as provide adequate physical and psychological working conditions. The capture and use of images, sound, writing, history, or other means of control that may affect an employee’s right to privacy are prohibited.
When teleworking is carried out at the employee’s home, the visit to this place can only have the purpose of controlling the work activity and the work instruments and must be requested with a prior notice period of at least 24 hours, with the agreement and in the presence of the employee.
Regarding organization, direction and work control, any remote work meetings must take place within working hours and preferably be scheduled in the working and preferably 24 hours in advance. Employees must be present at the company’s premises or other designated locations when summoned at least 24 hours in advance. The employer now bears the costs of these journeys if they exceed the normal cost of transport between the employee’s home and the place where they would carry out face-to-face work.
Finally, this law also established new rules for Health and Safety Protection in the Work Place. Thus, the practice of teleworking in activities involving the use or contact with hazardous substances and materials is forbidden unless it is carried out in facilities certified for this purpose. In a similar fashion, the employer is obliged to comply with minimum health and safety requirements regarding work and equipment with screen display. The employee is obliged to give access to the workplace where they work to the professional designated by the employer.
On another hand, Law no. 18/2021, of April 8, amended the Transfer of Undertaking legal framework. With this amendment, it is now stressed out that the transfer of undertaking (or part of undertaking that constitutes an economic unity) regime is applicable in case of tender procedures to execute service proving contracts.
The service providing contracts that constitute a transfer of undertaking (or part of undertaking) may come as a result of public tender procedure or through any other procedure to select and execute service providing contracts, in public or private sectors, namely surveillance, food, cleaning or transport services.
According to Portuguese law, both employer and employee representatives may request the participation of representatives of the Portuguese Labor Ministry (DGERT) in the negotiation meetings to be held between the parties.
With the entry into force of Law no. 47/2021, of September 3, the “supervision” period of the collective bargaining agreements (in other words, the period during which the collective bargaining agreement is still in force after one of the parties withdrawals from it) was suspended for 24 months. Thus both “supervision” periods that started before March 10, 2021, and “supervision” periods that started after that date are suspended until March 10, 2023.
Finally, with the amendment to Law no. 29/2017, of May 30, carried out by Decree-Law no. 101/2020, of December 7, the rules regarding the posting of employees in the framework of a provision of services in Portuguese territory and to the posting of employees to another Member-State by service providers established in Portugal was altered.
With the entry into force of this Decree-Law, the legal protection of posted employees are increase, considering all that is set forth in the law and collective bargaining agreements which have been declared universally applicable, namely regarding the conditions of employee’s accommodation when provided by the employer and allowances of reimbursement of expenditure to cover travel, board and lodging expenses for employees away from home.
On another hand, to employees posted by temporary employment agencies is now also applicable the same conditions applicable to the employees posted by temporary employment agencies established in Portugal. The user company is now obliged to inform the temporary agency of the applicable working conditions. If the user posts the temporary employee to another Member-State, it shall also be required to inform the temporary agency which hired out the employee in due time before the work starts.
When the effective duration of a posting exceeds 12 months, posted employees are entitled to all legal conditions set forth by law, regulation or administrative provision, as well as by collective bargaining agreements or arbitration awards which have been declared universally, applicable in the Member State where the work is carried out.
Finally, the minimum wage applicable in the Member-State where the work is carried out is one of the guarantees that is now provided to posted employees, regardless of the length of the posting. Allowances specific to the posting are considered to be part of the employee’s remuneration unless they are paid in reimbursement of expenditure actually incurred on account of the posting.
In this chapter, the most significant aspects of Portuguese labour law for business investment are described below.
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