Legal alert no. 27
Law n. 29/2017, which enters into force on 31 May 2017, transposes the Directive 2014/67/EU of the European Parliament and of the Council, of 15 May 2014, concerning the posting of workers in the framework of the provision of services. It is applicable in two situations:
a) posting of workers in Portugal;
b) posting of workers in another Member State, by service providers established in Portugal.
This Directive focuses on the following subjects: application scope, administrative cooperation, monitoring compliance, defence of rights and cross-border enforcement of financial administrative penalties or fines and establishes a common framework of a set of appropriate provisions, measures and control mechanisms necessary for better and more uniform implementation, application and enforcement in practice of Directive 96/71/EC, including measures to prevent and sanction any abuse and circumvention of the applicable rules.
The Directive aims to guarantee respect for an appropriate level of protection of the rights of posted workers for the cross-border provision of services, in particular the enforcement of the terms and conditions of employment that apply in the Member State where the service is to be provided, while facilitating the exercise of the freedom to provide services for service providers.
In order to assess whether a posted worker temporarily carries out his or her work in a Member State other than the one in which he or she normally works, all factual elements characterising such work and the situation of the worker shall be examined. Such elements may include in particular:
(a) the work is carried out for a limited period of time in another Member State;
(b) the date on which the posting starts;
(c) the posting takes place to a Member State other than the one in or from which the posted worker habitually carries out his work;
(d) the posted worker returns to or is expected to resume working in the Member State from which he or she is posted after completion of the work or the provision of services for which the employee was posted;
(e) the nature of activities;
(f) travel, board and lodging or accommodation is provided or reimbursed by the employer who posts the worker and, if so, how this is provided or the method of reimbursement;
(g) any previous periods during which the post was filled by the same or by another posted worker.
In order to determine whether an undertaking genuinely performs substantial activities, other than purely internal management and/or administrative activities, the competent authorities shall make an overall assessment of all factual elements characterising those activities, carried out by an undertaking in the Member State of establishment, and where necessary, in the host Member State. Such elements may include in particular:
(a) the place where the undertaking has its registered office and administration, uses office space, pays taxes and social security contributions and, where applicable, in accordance with national law has a professional licence or is registered with the chambers of commerce or professional bodies;
(b) the place where posted workers are recruited and from which they are posted;
(c) the law applicable to the contracts concluded by the undertaking with its workers, on the one hand, and with its clients, on the other;
(d) the place where the undertaking performs its substantial business activity and where it employs administrative staff;
e) the number of contracts performed and/or the size of the turnover realised in the Member State of establishment.
To access the full version of Law n. 29/2017, please click on the following hyperlink: