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Description

The Portuguese government have published their Decent Work Agenda (Agenda de Trabalho Digno), Law No. 13/2023 as of 03 April 2023, amending the Labour Code as well as other related legislation. The amendments have come into force from 01 May 2023, with exception of amendments related to collective labour relations which were amended 04 April 2023.

The main amendments to the Labour Code which have particular relevance to platform business models are as follows:

Digital platforms:

• Presumption of employment between platform operators and self-employed workers can be established if:
• the platform operator sets the remuneration rate for the worker;
• the platform operator manages the providers actions and presentation;
• the platform operator engages in control mechanisms, in particular electronic or algorithmic management;
• the platform operator restricts the activity provider's autonomy with regard to work organization, the ability to accept or refuse tasks, the use of subcontractors, the choice of clients, or providing activity to third parties via the platform;
• the platform operator exercises managerial power, such as deactivating a workers account;
• the work equipment and tools used by the provider belong to the digital platform operator or are operated by it through a lease contract.
• The employment presumption can be rebutted and is applicable to the activities of digital platforms, including those regulated by legislation on remunerated passenger transportation in private vehicles from an electronic platform.

Algorithmic and artificial management:

1. Job applicants must be made aware of a company's use of algorithms and/or artificial intelligence.
2. Workplace decision-making processes which use algorithms or artificial intelligence systems must apply legal requirements against discrimination, and for equality, in a company.
3. Collective bargaining agreements must only regulate the use of algorithms, artificial intelligence and associated technologies in a way that is advantageous to employees.

Duty to provide information to employees:

• The employee is now entitled to be informed of:
• The identification of the user company in case of a temporary employee;
• The individual right to continuous training;
• In the case of intermittent work, the information provided for in the legally established framework;
• The parameters, rules, and instructions on which the algorithms or other artificial intelligence systems are based;
• The duration and conditions of the probationary period, if applicable;

• The method of payment of the remuneration, including the breakdown of its constituent elements.

• The employer must ensure the conservation of proof of transmission or receipt of the information provided, which must be presented to the labour inspection service upon request.

Economically dependent employees:

• Self-employed workers receiving more than 50% of the remuneration from their activity(s) from a single beneficiary and entitled to the following rights:

• Regardless of membership status, representation of their interests by trade unions and employee councils;

• Collective bargaining coverage negotiated by trade unions;
• Application of terms and conditions of retrospectively agreed collective agreements normally applied to employees;
• Administrative extension of a collective bargaining Agreement or arbitration award;

• Establishment of minimum working conditions.

• Further criteria for application of collective agreements to economically dependent self-employed will continue to be developed.

Fixed-Term Employment Agreements:

• The expected duration of the agreement must now be included.
• Compensation for the expiring of term employment agreements is increased to 24 days of basic pay and seniority allowance for each complete year of service.
• A fixed-term temporary employment agreement can be renewed a maximum of 4 times. Duration of subsequent temporary work agreements concluded with the same employer or company in a controlling or group relationship or with a common organisational structure, cannot exceed 4 years; otherwise, the agreement will be converted into an open-ended employment agreement for temporary assignment.

Collective dismissal, outsourcing and collective labour relations:

• Compensation in case of collective dismissal is now 14 days' base pay and seniority payments for each full year of seniority.
• In outsourcing, It is not permitted to resort to the acquisition of external services through third-party entities to meet needs that were provided by an employee whose agreement was terminated in the previous 12 months due to collective dismissal or job position extinction.
• Even if there are no unionised employees, trade union activity can still be exercised in the company under specific applicable conditions.
• In case of termination of a collective bargaining agreement, the recipient party may request arbitration from the President of the Economic and Social Council to assess the grounds for the termination.

Other amendments to the Labour Code include:

• Overtime work exceeding 100 hours per year must be paid at the hourly rate of pay with the following increases: (1) 50 % for the first hour or fraction thereof and 75 % per subsequent hour or fraction thereof, on a working day; (2) 100% for each hour or fraction thereof, on a mandatory or complementary weekly rest day or on a public holiday.
• The grounds for claiming discrimination practices in access to employment, vocational training, or working conditions is expanded.
• Exemption from work is now established in the context of adoption and foster care procedures.
• Parents have the option, after enjoying 120 consecutive days of initial parental leave, to combine the remaining days of leave on a part-time basis each day.
• The mandatory leave for the father is extended from the current 20 business days to 28 days, either consecutively or interpolated periods of at least 7 days, within the first 42 days following childbirth.
• Parents now have the right to complementary parental leave.
• There are no longer time restrictions on employees pursuing for adoption or foster care.
• Absences for adoption and foster family processes do not determine the loss of any rights and are considered as effective work, except as to remuneration.
• Absences due to mourning, as well as absence for assisted reproduction consultation or prenatal visits, breastfeeding or lactation will not determine the loss of any rights and will be considered as effective work.

Caregiver employee:

• A caregiver employee is someone who has been recognised as an informal non-primary caregiver, in accordance with the applicable legislation, upon presentation of the respective proof.
• Caregiver employees are entitled to annual leave of five consecutive business days, without pay.
• During the leave, the caregiver employees cannot perform subordinate work or provide continuous services outside their usual residence.
• The termination of fixed-term employment agreements (Article 143º/3) and dismissal (101º-F) of caregiver employees depends on the prior opinion of the Commission for Equality in Labour and Employment ("CITE").

Information Concerning The Provision of Work Abroad:

• The employee who carries out his activity in the territory of another State for a period exceeding one month is entitled to the following information: (i) remuneration to which he is entitled under the law applicable in the host State, in situations of posting; (ii) allowances related to posting and reimbursement of travel, accommodation and meal expenses; and (iii) official website of the host State (article 108(1)).

Probationary period:

• Employees seeking their first job or who have been unemployed for a long time will have their probationary period reduced or excluded depending on the duration of their previous fixed-term employment agreement being equal to or greater than 90 days.
• The probationary period may be reduced if the duration of a professional internship with positive evaluation for the same activity and a different employer has been equal to or greater than 90 days in the past 12 months.
• When the probationary period is longer than 120 days, the termination of the employment agreement by the employer becomes subject to a 30-day prior notice.
• Abusive terminations (in abuse of right) will be subject to the regime of the effects of unlawful dismissal, particularly with regard to the employee's right to claim: (i) compensation for damages (material and non-material); (ii) reinstatement in the company or compensation in lieu; and (iii) compensation for interim remuneration.

Teleworking:

• The employment agreement and the applicable collective bargaining agreement must now determine the compensation, fixed or variable, due to the employee for additional expenses related to teleworking/hybrid work arrangements.
• In the absence of an agreement on a fixed amount, additional expenses are deemed to be those corresponding to the acquisition of goods and/or services that the employee did not have before teleworking or working in a hybrid work arrangement.
• The compensation is considered an expense for the employer and does not constitute work income for tax purposes up to the limit to be defined by ministerial order.

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Additional metadata

Keywords

autonomy and control, information asymmetry, algorithmic management, working conditions, employment status

Actors

Government

Sector

No specific sector focus

Sources

• New Legal Framework For Portuguese Labour Code Decent Work Agenda (18 April 2023)
• Updates to Portuguese Labour Code (6 April 2023)