Amending the legislation concerning the posting of workers
Legal Alert no. 137
Decree Law 101-E/2020 transposing Directive (EU) 2018/957 on the posting of workers in the framework of the provision of services was published, amending Law 29/2017 of 30 May.
The following elements have been added to characterize the work and situation of the worker:
- The existence and the conditions of worker’s lodging provided by the employer;
- The remuneration and allowances to cover travel, these being presumed to be paid as reimbursement of travel, board and lodging expenses, when the elements that are paid as remuneration are not determined.
The list of matters to be promoted by the ACT has been extended, now including access, free of charge, to more detailed information on working and social conditions applicable to posted workers, namely:
- Safety and health at workplace;
- Remuneration, including its constituent elements, in accordance with the applicable law or collective agreements;
- Working conditions applicable in the framework of postings of more than 12 months' effective duration, or 18 months where applicable;
- Working conditions related with the assignment of workers by a temporary work company.
ACT will also be the competent authority to provide information on service providers or services provided, concerning the transnational handover of workers and the combating of illegal activities, namely undeclared work or false self-employment, related to posting.
In order to ensure the compliance with the obligations set out in the present law, concerning the posting of workers in Portuguese territory, the service provider must keep copies, in paper or electronic format, of the pay slips, containing the breakdown of their constituent elements, including the allowances, bonuses and reimbursement of expenses to cover travel.
Three new articles have been added to the law:
I - Working conditions of posted workers
Without prejudice to any more favourable regime contained in the law or in the employment contract and to that established in Article 7 of the Portuguese Labour Code, the posted worker shall be entitled, on the basis of equal treatment, to the working conditions provided for in the law and in the collective agreements which are generally applicable, concerning:
a) The conditions of worker’s lodging where provided by the employer;
b) Allowances or reimbursements intended exclusively to cover travel, board and lodging expenses incurred by posted workers who have to travel to and from their usual place of work of the posting or who are temporarily sent to another place of work.
A worker hired by a company established in Portugal, providing activity in the territory of another State, shall be entitled to the working conditions set out in the present article, without prejudice to any more favourable regime contained in the applicable law or in the employment contract.
II – Long term posting
Where the effective duration of the posting exceeds 12 months, irrespective of the law applicable to the employment relationship, in addition to the above conditions, posted workers shall be entitled to all the working conditions provided for in the law and in a collective agreements which are generally applicable. By means of a reasoned communication to the ACT, stating the reasons justifying the extension of the posting, the conditions established shall apply after 18 months of effective duration.
In cases where the initial foreseeable duration of the posting is less than 12 months, the mentioned communication to the ACT must be delivered at least 30 days before the end of that period.
In the situations where a posted worker is replaced by another posted worker, the duration of the posting shall correspond to the cumulative duration of the posting periods of the individual posted workers concerned, provided that they have been posted to perform the same task at the same place, taking into consideration the nature of the service to be provided, the work to be performed and the address of the workplace.
A worker hired by a company established in Portugal, providing activity in the territory of another State, is entitled to the above-mentioned working conditions, without prejudice to any more favourable regime contained in the applicable law or employment contract.
III - Temporary work
Without prejudice to a more favourable regime laid down by law or employment contract and to that established in article 7 of the Portuguese Labour Code, workers posted by temporary employment agencies are entitled to all the working conditions applicable to temporary workers assigned by temporary employment agencies established in Portugal.
The user undertaking shall inform temporary work agencies of the working conditions it applies, including the retribution.
A worker hired by a temporary work agency established in Portugal, working in the territory of another State, is entitled to the above-mentioned working conditions, without prejudice to any more favourable regime contained in the applicable law or employment contract.
In situations where a temporary worker has been assigned to a user undertaking and must perform work in the framework of the transnational provision of services, in a State other than that of posting, the user undertaking must inform the temporary employment undertaking of that fact before the starting work.
In cases of illegal assignment of the temporary worker, he is considered to be posted, in the territory of the State where he is carrying out the work, by the temporary agency with which he has an employment relationship.
The legislation regarding the long term posting shall apply to the postings started before the entry into force of this Decree-Law, but shall only produce the effects provided for therein, as regards the working conditions applicable, from the time they reach an effective duration of more than 12 months.
This Decree-Law shall enter into force on December 9, 2020.
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