Miércoles, 08 Junio 2022

New changes to the Portuguese Labour Code

VolverThis month, the Labour Law Department of Belzuz Abogados, S.L.P. – Sucursal em Portugal focuses on the new amendments expected to the Portuguese Labour Code, especially those that might have a direct impact on the day-to-day life of companies:

(1) Temporary employment

• In the event of signing or renewal of a contract of use, with a non-licensed temporary work company, the integration of the temporary employee is made via a permanent employment contract with the user company

• Limit of 4 renewals of temporary employment contracts

• Add a new requirement, of a percentage of temporary employees to have more stable work relationships, to ensure the reinforcement of the stability of the temporary work companies

• Create an additional penalty to prevent partners, managers, directors, and other members of the company's governing bodies (temporary work companies, private placement agencies), who were convicted during their activity, namely for crimes concerning labour, tax, fiscal, illegal immigration and human trafficking matters, to exercise their activity

(2) Combating false self-employment and unjustified use of non-permanent work

• Apply a contribution rate to the company receiving the services extended to sole proprietors, who are economically dependent on that company

• Strengthen the rules about the sequence of fixed-term contracts, and therefore avoiding the use of this form of employment in an abusive way, particularly by preventing new hiring or allocation of an employee via a contract (fixed-term, temporary or service provision), which is executed for the same work position with the same object or for the same professional activity

• Temporarily prevent the hiring of outsourcing services to meet the needs met by employees whose work positions were included in a collective dismissal or in a dismissal due to the redundancy of the work position

• Increase the compensation per termination of fixed or unfixed term employment contracts, to 24 days per year of seniority

• Set a 30-day notice period for contract termination of the contract by the employer during the trial period, when this as lasted for more than 120 days

(3) Work-life balance

• Reinforce incentives for the sharing of parental leave between men and women, namely by gradually increasing the amount of the parental allowance

• Encourage the accompaniment of children by articulating leaves and part-time work, with the possibility of enjoying parental leave as from 120 days on part-time, and the possibility of parents being able to double their leaves if they work half the full time from the 5th month (included), with the corresponding reduction of the parental allowance

• Reinforce the parental leave scheme for adoption situations, to bring them closer to the general scheme, allowing the adopting fathers to have the right to take the exclusive father leave and respective allowance, and allowing the initial parental leave to be taken in the transitional period before the child is placed

• Make the adaptability and bank of hours regimes depend on the express authorization of employees with minor children under 6 years or children with disabilities or chronic illness regardless of age. While between 3 and 6 years, it must be proved that the other parent is unable to take the child

(4) Protection of young working students and trainees

• On professional internships, eliminate the possibility of paying trainees less than what is set forth in the Portuguese Labour Code (80% of the Minimum Monthly Wage), namely by repealing the provisions of Decree-Law No. 66/2011 of June 1, which currently allow trainees to receive 1 IAS (Social Support Index)

• Standardise the rules of existing professional traineeship schemes to ensure greater protection of the rights and income of trainees, namely by making the social protection scheme for traineeships not supported by the IEFP, I.P. equal to that of the traineeships that are supported by the IEFP, I.P., so that trainees have the same status as employees in terms of social security payments and contributions

• Reinforce the protection of the rights of young working students aged 27 or younger, namely by preventing the loss of social benefits, provided that their income is not more than 14 times the Minimum Monthly Wage per year

(5) Protection of informal caregivers

• Create a caregiver license as an annual right

• Extend the right to be absent from work up to 15 days, without loss of rights, except remuneration, to informal caregivers who are not the main caregivers but whose status has been recognized (up to 4th degree kinship, compared to the 2nd degree of the current direct line)

(6) Reinforcing the fight against undeclared work

• Reinforce the penalty framework for fully undeclared work, namely by criminalising resorting to work under these conditions

• Increase to 1 year before fact verification, the presumption (which is currently 6 months), of the existence of work provision, when the employment relationship is legalised, and payment of corresponding social security contributions

(7) Reinforcing the powers of the Authority for Working Conditions ("ACT")

• Reinforce ACT’s powers when there are dismissals with signs of unlawfulness, by notifying the employer to legalise the situation or, in case this is not possible, by reporting the facts to the Public Prosecutor's office to open an injunction to suspend the dismissal

• Densify the criteria for issuing continuous work (“laboração continua”) orders, by clarifying in the law that the reasons must be associated with safety reasons or equipment operation and the conditions of the market where the companies operate, namely by necessity due to temporary or extraordinary increase in activity or orders, and establishing that continuous work permits should indicate, where applicable, a predicted period of a maximum of five years, while also setting forth the possibility of the ACT to request an opinion from competent authorities or entities in the scope of the decision-making process

• Establish an automating reporting of the hiring of foreign employees by Social Security to the ACT, therefore eliminating the obligation of companies report to the ACT when hiring those employees and terminating the correspondent employment contracts

• Implement a one-time reporting of the hiring of employees to social security and labour compensation funds

(8) Collective bargaining

• Extend the coverage of collective bargaining to outsourcers (by analogy with thebregime that is applicable to temporary employees) and economically dependent self-employed employees (namely if they perform duties on a regular basis, for a significant period, and are part of the company's object)

• Deepen the guarantees of effectiveness of the exercise of union action rights, namely by clarifying in the law that the right to display and distribute union information in company's premises is extended to virtual spaces of the company, such as the intranet or e-mail addresses

(9) Digital platforms and algorithms

• Create a rebuttable presumption of the existence of an employment contract with the platform or with the company that operates the platform, based on substantial criteria, by demonstrating that the service provider is not a subordinate employee (in line with the Commission’s Directive proposal concerning platform work while safeguarding the adaptation of specific legal regimes)

• Conduct a study and build a pilot program to analyse and test new work organisation models, including experiences such as the four-day week in different sectors and the use of hybrid models of on-site work and telework

The Labour Law Department of Belzuz Abogados, S.L.P. – Sucursal em Portugal has experienced and qualified professionals to inform and clarify about the recent legislative changes above with impact on the labour market, as well as to advise companies for them to fully comply with their obligations.

 Vera Madeira Duarte Vera Madeira Duarte 

Departamento Derecho laboral | (Portugal)

 

Belzuz Abogados SLP

La presente publicación contiene información de carácter general sin que constituya opinión profesional ni asesoría jurídica. © Belzuz Abogados, S.L.P., quedan reservados todos los derechos. Se prohíbe la explotación, reproducción, distribución, comunicación pública y transformación total o parcial, de esta obra, sin autorización escrita de Belzuz Abogados, S.L.P.

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