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New rules for labour contracts – part 2

by Dr. Eduardo Serra Jorge features@algarveresident.com

In his new monthly column, Lawyer Eduardo Serra Jorge from lawyers firm Eduardo Serra Jorge & Maria José Garcia – Sociedade de Advogados, R.L., will be addressing legal issues affecting foreign residents in Portugal.

Law n.º 23/2012 of June 25 introduced several changes to the Portuguese Labour Law (PLL) and was expected to come into force on August 1, 2012.

Some of those changes were already explained in our last article (July 13 edition). However, there are also other important aspects:

• In case of a definitive relocation to a new workplace, the employee can end the contract if the relocation causes serious hardship to the worker. The worker will have the right to receive compensation to the amount of 20 days of one monthly base salary and seniority payments for each full year of work.

• The collective labour regulations regarding the implementation of a ‘bank of hours’ must also determine how overtime work is paid. It is possible to choose between the following options: (1) by an equivalent reduction of working hours, (2) increasing the period of holiday or (3) by financial recompense.

• The collective labour regulations allow the employer to apply a ‘bank of hours’ to a certain group of workers (a specific department/section for example) so long as a minimum of 75% of the workers agree on this.

• The employer and the worker can agree on an individual bank of hours, allowing the normal daily period of work to increase by up to two additional hours and weekly by up to 50 extra hours. Nevertheless, there is a limit of 150 hours of overtime per year.

The agreement must meet certain requirements. For instance, the employer needs to propose this to the worker in writing and if the employee does not respond within the following 14 days, then the agreement is deemed to have been accepted.

• The employee who works on a holiday or during the time she/he was supposed to have a supplementary weekly rest day has the right to receive an extra 50% pay of the worked hours or half of the worked hours as rest. The compensatory rest hours must be taken within the three days following the worked holiday/mandatory rest day. It is up to the employer and worker to agree on whether pay or rest time is taken.

• If there is a disciplinary procedure in place, the employer is obliged to proceed with the probative diligences requested by the employee, unless those diligences are requested as delaying tactics or are considered unnecessary. In this case, the employer needs to duly justify why he considers those diligences are dilatory and/or unnecessary.

The employer isn’t obliged to hear from more than three witnesses for each fact mentioned on the notice of fault, nor from more than a maximum of 10 witnesses in the total disciplinary proceeding

• Internal regulations are effective from the moment they are displayed at the headquarters of the company and also at the individual places of work, allowing the workers to have permanent and full access to them. It is no longer necessary to send them to the Portuguese public entity responsible for work issues (ACT).

• Within the 60 days following the commencement of a labour contract, the employer is obliged to inform the worker about the applicable salary compensation fund or the equivalent structure, as per the specific legislation.

Also the employer needs to inform ACT about the corresponding salary compensation fund or the equivalent structure applicable to each labour contract agreed on. If there is any change to the salary compensation fund or the equivalent structure, the employer has to inform ACT within 30 days from the alteration being made.

In addition to the changes mentioned above, there are also important changes about the reasons that may lead labour contracts to an end.

You are advised to be vigilant, taking heed of when a labour contract is about to end and ask for the advice of a professional.

Lawyer Eduardo Serra Jorge can be contacted at his Faro office at Gaveto das Ruas Pedro Nunes e José de Matos, 5 R/C, on telephone +351 289 829 326, Fax. +351 289 829 327 or email: esjmjg@net.novis.pt. Alternatively, please visit www.esjmjgadvogados.com