Within the scope of Law 13/2023, of April 3, 2023, which introduced amendments to the Labour Code, the situation of self-employed workers and the outsourcing of services deserves an autonomous analysis.
Thus, in relation to the self-employed worker, the following aspects are highlighted:
– The natural person who provides, directly and without the intervention of third parties, activity to the same beneficiary and obtains more than 50% of the product of its activity in a calendar year, is considered to be in a situation of economic dependence;
– Applicability of the rules regarding personality rights, equality and non-discrimination, safety and health at work, as well as of the applicable Collective Labour Regulation Instruments;
– If the work provider carries out activity for companies with reciprocal participation, domain or group relationship, it is presumed to be provided to a single beneficiary;
– The work provider can ensure the activity through a third party in case of birth, adoption or assistance to a child or grandchild, breastfeeding and lactation, voluntary interruption or risk pregnancy for the period of exemptions provided for in the Labour Code.
With the aim of extending the coverage of collective bargaining to self-employed workers who are economically dependent when they perform functions on a regular basis and for a significant period of time for the same entity, rules concerning the following matters are now applied to work providers in a situation of economic dependence: (i) personality rights; (ii) equality and non-discrimination; (iv) safety and health at work; and (v) Negotiated Collective Labour Regulation Instruments in force within the scope of the same sector of activity, professional and geographic.
With regard to dependent work within the scope of digital platforms, a (rebuttable) presumption of the existence of an employment contract is established when, in the relationship with the activity provider, it is the digital platform that: (i) sets the remuneration; (ii) exercises management power, controlling and supervising the provision and quality of the activity; (iii) restricts autonomy in terms of work organization, defining schedules or periods of absence; (iv) exercises disciplinary power; (v) owns the equipment used.
The aforementioned presumption of the existence of the employment contract may also cover the relationship between the natural or legal person who acts as an intermediary of the digital platform and the activity provider, in which case the court is responsible for determining who the employer is (digital platform or intermediary).
The joint and several liability of the digital platform, of the natural or legal person acting as an intermediary, of the respective managers or directors, and also of the companies that are in a relationship of reciprocal, controlling or group shareholdings, is enshrined: (i) for workers’ credits; (ii) for the social charges and (iii) for the payment of a fine applied for the practice of labour offences relating to the last three years.
(Independent) work providers in a situation of economic dependence are now entitled to: representation of their socio-professional interests by a union and workers’ committee (even if they cannot be members of them); negotiation of Collective Labour Regulation Instruments, specific for self-employed workers, through trade unions; application of Collective Labour Regulation Instruments that already exist and are applicable to workers, under the terms provided therein; administrative extension of the regime of a collective agreement or arbitration decision and the administrative setting of minimum working conditions.
Regarding the outsourcing of services, that is, the acquisition of external services to a third party for the performance of activities corresponding to the corporate object of the acquiring company, the following aspects must be highlighted:
– It is not allowed to resort to the acquisition of external services from a third party to satisfy needs that were assured by a worker whose contract has ended in the 12 months prior to collective dismissal or dismissal due to the extinction of a job;
– After 60 days of providing the activity for the benefit of the acquiring company, the Collective Bargaining Regulation binding the beneficiary of the activity is applicable to the service provider, when it is more favourable, for which purpose the service provision contract must determine which entity is responsible for ensuring compliance with the obligations set out in the collective labour regulation instrument that binds the beneficiary of the activity.
For the purposes of the foregoing, a service provider is understood to be the natural person who provides the activities that are the object of the service provision contract, whether it is the counterparty of the acquiring company, whether the counterparty is another legal person with whom it maintains a contractual relationship, and regardless of its nature.
By Dr Eduardo Serra Jorge
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Dr Eduardo Serra Jorge is founding member, senior partner and CEO of lawyers firm Eduardo Serra Jorge & Maria José Garcia – Sociedade de Advogados, R.L., created in 1987.
In his column, he addresses legal issues affecting foreign residents in Portugal.
Faro office at Gaveto das Ruas Pedro Nunes e José de Matos, 5 R/C
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