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Changes to the labour legislation with the Dignified Work Agenda – Publishing of the Law no. 13/2013 of April 3rd

CTSU – A Deloitte Legal Practice informs that, on April 3rd, 2023, Law no. 13/2013 has been published, implementing several changes to the Portuguese labour legislation.

 

DUTY OF INFORMATION OF THE EMPLOYER

Pursuant to article 106 of the Labour Code, the employer has the duty to inform the employee, in written, regarding a series of mandatory elements (as is, for example, the employee’s professional category and his/her working place).

With the change to the legislation, the employer now has to provide, also, the following information, in written, to the employee:

a) the stipulated term or the foreseeable duration of the employment agreement, when it is, respectively, a fixed-term or an uncertain term employment agreement;

b) the formal requirements to observe by the employer and the employee regarding the termination of the employment agreement, or the criteria for its determination;

c) the payment method of the remuneration, including the description of its constitutive elements;

d) the applicable regime in case of overtime work and of organization through shifts;

e) where there is an applicable collective bargaining agreement, the designation of the contracting parties;

f) in case of temporary worker, the identification of the user company;

g) the duration and conditions of the probation period, if applicable;

h) the individual right to continuous professional training;

i) in case of intermittent work, the annual number of the hours of work or the days of work in full-time, the duration of the provision of work and the respective remuneration compensation;

j) the regimes of social protection, including other benefits, complementary or substitute of the ensured by the social security general regime;

k) the parameters, criteria, rules and instructions that fundament the algorithms or other systems artificial intelligence systems that affect the decisions on access and maintenance of employment, as well as employment conditions, including the elaboration of profiles and control of the professional activity.

The duty of information is deemed complied with when the information is included within the employment agreement or the promise of employment agreement, made in written. Nevertheless, the employer may communicate some elements to the employee separately, electronically or via paper, as long as the legal deadlines are observed.

The employer must inform the employee of the change relating to any of these elements, in writing and, at the latest, by the date on which it begins to take effect.

PROBATION PERIOD

Duration

Should the employer fail to provide the information regarding the duration and conditions of the probation period, it is presumed that the parties have agreed on excluding the probation period.

On another note, the probation period of 180 days for employees looking for their first job and the long-term unemployed is reduced or excluded, depending on whether the duration of a previous fixed-term employment contract, entered into with a different employer, has been equal to or higher than 90 days.

Identically, the probation period is also reduced depending on whether the duration of a professional internship with a positive assessment, for the same activity and different employer, has been equal to or higher than 90 days, in the last 12 months.

Termination

Regarding the termination of the employment agreement within the course of the probation period, the employer is now obliged to comply with a prior notice of 30 days in the cases in which the probation period has lasted more than 120 days.

The employer is also obliged to communicate, to the Working Conditions Authority (ACT), the terminations of employment agreement during the probation period when referent to employees looking for a first job or long time unemployed, to employees in parental leave and to caregiver employees.

 

OVERTIME WORK

Payment of overtime work

The Labour Code now implements a distinction to the payment of overtime work depending on the hours of overtime work provided per year.

As such, overtime work provided up to 100 hours per year is still paid by the hourly remuneration with the currently increases in force:

a) 25% for the first hour or fraction and 37,5% for each subsequent hour or fraction, on a business day;

b) 50% for each hour or fraction, in a mandatory or complementary weekly rest day or in a public holiday.

On the other hand, overtime work provided for more than 100 hours per year is now paid by the hourly remuneration with the currently increases in force:

a) 50% for the first hour or fraction and 75% for each subsequent hour or fraction, on a business day;

b) 100% for each hour or fraction, in a mandatory or complementary weekly rest day or in a public holiday.

Collective labour regulation instruments

In order to reflect this new legal regime, the provisions of collective labor regulation instruments contrary to the new law will have to be amended by January 1, 2024.

 

PARENTAL RIGHTS

Parental leave exclusive to the father

The father's exclusive parental leave, which is mandatory, is now of 28 days, which can be taken consecutively or in interpolated periods of at least 7 days, within the 42 days following the child's birth.

Of these 28 days of leave, 7 days must be taken consecutively immediately after the birth of the child.

After taking the 28-day leave, the father is still entitled to take 7 (additional) days of leave, consecutive or interpolated, provided they are taken simultaneously with the mother's initial parental leave.

Parental leave exclusive to the mother

It is now mandatory that the mother enjoys 42 consecutive days of leave following the birth of the child.

Complementary parental leave

After the enjoyment of 120 days of leave, the parents may cumulate, in each day, the remaining days of the parental leave with part-time work.

 

ABSENCES REGIME

Absences due to gestational grief

In cases of interruption of pregnancy, the employee who does not enjoy the corresponding leave is entitled to be absent from work for up to 3 consecutive days.

The father is also entitled to be absent from work for up to 3 days, when the mother is on leave due to termination of pregnancy or is absent as previously described. In this case, both employees must inform the respective employers, presenting, as soon as possible, proof of the invoked fact, through a statement from a hospital or health center, or a medical certificate.

Absences due to the death of a spouse

In case of death of a spouse not separated, the number of justified absences is now of 20 days.

Absences due to sickness

The National Health System may issue sick leaves up to 3 days, through self-declaration of sickness, under commitment of honour, up to 2 times per year.

 

REMOTE WORK

Right to remote work

Employees with a child with a chronic illness or oncological disease, regardless of age, are entitled to work remotely, provided that this regime is compatible with the duties performed and provided that the employer has the resources and means to do so.

Additional expenses of the employee under remote work

The amount of compensation due to the employee for additional expenses must be fixed within the conclusion of the employment agreement, the collective labor agreement and/or in the agreement for the provision of remote work.

In the absence of this fixation, additional expenses are those corresponding to the acquisition of goods and/or services that the employee did not have before the conclusion of the individual remote work agreement, as well as those determined by comparison with the homologous expenses of the employee in the last month of work on an on-sight basis.

Compensation for additional expenses with remote work is now considered an employer's cost for tax purposes and is not subject to IRS and Social Security contributions if it does not exceed an amount (to be) defined by government ordinance.

 

DISCRIMINATION

Discriminatory remuneration related to the awarding of attendance and productivity bonuses, as well as unfavorable allocations in terms of evaluation and career progression are now also considered to be discriminatory practices.

 

POSTING OF WORKERS

When an employee is posted to the territory of another State for a period longer than one month, the employer is obliged to provide him/her, in writing and up to the date of his/her departure, the following information:

a) Identification of the State or States where the work is to be performed and the foreseeable duration of the period of work to be performed;

b) Currency and place of payment of cash benefits and, if applicable, benefits in kind;

c) Possibility of repatriation and respective conditions;

d) Access to health care;

e) Remuneration to which he is entitled under the applicable law in the host State, in situations of secondment;

f) Subsidies inherent to the secondment and reimbursement of travel, accommodation and food expenses, when applicable;

g) Official website of the host State, created under the terms of the specific legislation applicable to the posting.

The mentions contained in items b), c) or e) above may be replaced by reference to the provisions of law, collective labor regulation instrument or company internal regulations that regulate the matter referred to therein.

 

PROFESSIONAL INTERNSHIPS

Law no. 13/2023 also implements changes to the regulations applicable to professional internships, establishing:

a) the minimum amount of the internship allowance at 80% of the national minimum wage (i.e., €608.00, in 2023);

b) the obligation, for the promoting entity of the internship, to subscribe a work accidents insurance in favor of the intern; and

c) the equivalence of trainees, for Social Security purposes, to employees.

STATUTE OF CAREGIVER EMPLOYEE

The new law has implemented the statute of the caregiver employee, assigning a series of rights to the employee, such as:

a) right to annual unpaid leave of 5 consecutive working days to assist the person being cared for;

b) right to apply for part-time work;

c) right to work under flexible hours;

d) right not to perform overtime work;

e) right to protection in the event of dismissal, which takes the form of the employer's obligation to communicate to CITE the termination of the employment contract during the trial period and the non-renewal of a fixed-term employment contract, as well as the need for a prior opinion from this entity to proceed with the dismissal of a caregiver worker.

 

TERM EMPLOYMENT AGREEMENTS

Compensation

Compensation due to employees for the expiration of fixed-term or uncertain-term employment agreements was increased to 24 days of base remuneration and seniority for each full year of activity, including for term employment agreements which, although having been entered into before the entry into force of this law, expire from May 1, 2023.

Prohibition of succession of term employment agreements

The termination of a term employment agreement, for reasons not attributable to the employee, now prevents the new admission or assignment of an employee through a term employment agreement or temporary work contract whose execution takes place within the same job or the same professional activity.

Non-renewal of term employment agreement – communication to the Commission for Equality within Work and Employment (CITE)
The employer is obliged to communicate to CITE the reasons for non-renewal of a term employment agreement signed with a caregiver employee (in addition to the previously established obligation with regard to pregnant, recent or breastfeeding workers and workers on leave parental).

 

TEMPORARY WORK AGREEMENTS

Succession of temporary work agreements

In the event that the maximum duration of the agreement for the use of temporary work has elapsed, succession in the same job or professional activity by a temporary employee or a term agreement employee, or even by a services agreement for the same job or professional activity, is prohibited, if entered into with the same employer or company that is in a controlling or group relationship with it, or maintains common organizational structures, before a period of time equal to one third of the duration of the first agreement, including renewals, elapses.

The agreement concluded between the employee and the user company in violation of this prohibition on succession is considered to be permanent and in favour of the user company.

Maximum number of renewals

The fixed-term temporary work agreement may be renewed up to 4 times.

 

COLLECTIVE DISMISSAL AND DISMISSAL DUE TO EXTINCTION OF THE WORKPLACE – COMPENSATION

The amount of compensation due to the employee in the event of a collective dismissal or a dismissal due to extinction of the workplace is now of 14 days of base remuneration and seniority for each full year of seniority, as of May 1, 2023 (which means that, for the period prior to this date, the previous 12 days of base remuneration and seniority per full year of work must be counted).

The compensation due to the employee also obeys this calculation rule in other cases of termination of the employment agreement, namely: dismissal due to failure to adapt, expiry of the employment agreement due to the death of the employer or due to insolvency and recovery of the company, termination of the external service commission, termination of the employment agreement following the transfer of establishment and termination of the employment agreement resulting from the transfer of the workplace.

 

TERMINATION OF THE EMPLOYMENT AGREEMENT – PROHIBITION OF WAIVING OF RIGHTS

The employee is no longer able to waive the rights arising from the employment agreement, its violation or termination, except by judicial transaction, thus ceasing to be valid the usual statement of discharge, for example, upon receipt of the account closing receipt or upon revocation by agreement.

However, one should note that paragraph 5 of article 349 of the Labor Code remains unchanged, pursuant to which, if the parties establish a global pecuniary compensation for the employee, it is presumed that this includes the credits due on the date of termination of the employment agreement.

 

OUTSOURCING

Prohibition of resorting to outsourcing in the event of a collective dismissal or a dismissal due to the extinction of the workplace

Companies are now forbidden to resort to external entities for the satisfaction of needs previously ensured by an employee whose employment agreement has terminated within the 12 previous months due to collective dismissal or dismissal due to the extinction of the workplace.

Applicability of collective labour regulation instruments to services providers

The applicability of the provisions of a collective labour regulation instrument applicable to the beneficiary company is extended to the employees of the companies providing services correspondent to the social purpose of the beneficiary company, whenever such provisions are more favourable to said employees.

 

COMPLIANCE WITH LABOUR LEGISLATION

Private entities, including companies under any legal form and non-profit private institutions, beneficiaries of European funds worth more than €25,000 per application, are now subject to a specific verification of compliance with labor legislation, by the ACT, at the request of the auditing entity responsible for the control action, through appropriate sampling.

 

PUBLIC REGISTRY OF COMPANIES WITHIN CONSTRUCTION AND AGRICULTURE

A public and mandatory registration system has been created for companies in the agriculture and construction sectors which provide external services that include the assignment and allocation of employees to third parties, to be defined in specific legislation.

 

OTHER OBLIGATIONS

Compensation Funds

Obligations of adhesion, of communication of admission of new employee and of payment of contributions to the Work Compensation Fund and to the Work Warranty Compensation Fund are suspended until the entry into force of the changes to the respective legal regimes.

Social Security

In the event of non-compliance with the timely communication of the employee's admission, it is presumed that he/she started to work on the 1st day of the 12th month prior to the verification of the non-compliance.

 

ENTRY INTO FORCE

The changes set forth above will entry into force on the 1st of May, 2023.
Notwithstanding, the employment agreements entered into before the entry into force of Law no. 13/2023 are subject to the wording introduced by such law, except for the conditions of validity and the effects of facts or situations prior to that moment, which continue to be governed by the old provisions.

With regard to fixed-term employment agreements entered into before the entry into force of Law no. 13/2023, the regime established by such law regarding its admissibility, renewal and duration does not apply.

Similarly, with regard to the renewal of temporary employment agreements before the entry into force of Law no. 13/2023, the regime now established does not apply.


For more information on this subject, please contact:

Pedro Ulrich

Av. Eng. Duarte Pacheco, 7, 7º andar, 1070-100 Lisboa
 

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