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Decent Work Agenda: the trial period in turmoil

By 6 Junho, 2022Junho 28th, 2022No Comments

The “Agenda do Trabalho Digno” (in English, “Decent Work Agenda”) comprises a vast set of legislative changes, approved by the Government and currently under parliamentary appreciation. One of the matters most affected by this legislative program is the experimental work period regime. And it can’t be said that the pre-legislator has been especially fortunate on this point.

First of all, we must point out what the pre-legislator does not do. Article 112 of the Portuguese Labor Code establishes three periods, depending on the nature of the duties, and the longest is 240 days, or eight months. It overlooks the fact that Directive (EU) 2019/1152, in its article 8, states the following: “Member States shall ensure that, where an employment relationship is subject to a probationary period as defined in national law or practice, that period shall not exceed six months”.

Since the deadline for transposition of the Directive is August this year, 2022, the changes now projected could/should include this reduction. Let’s hope so.

More important is what the pre-legislator intends to do in this area. Leaving aside some bureaucratic requirements, as well as the increase in cases of reduction or exclusion from the experiment, we point out only two proposed changes that seem less positive.

The first consists in the requirement of justification, in writing, for the employer’s termination. There are two possibilities: either an objective justification or motivation is considered, and the trial period no longer makes sense; or a generic and vague explanation is accepted, and the solution would be better left on the shelf of “cosmetic” legislation.

It is important to keep in mind that the trial period makes sense, above all, in undetermined duration contracts, and could, on this account, work as a resource to fight against labor precariousness, so fashionable in political discourse. As we know, the initial experience has been made, above all, under the cover of fixed-term contracts. Complicating the use of the trial period may contribute to an increase, not a decrease, in this very negative practice.

Then, the bill in question states that “a complaint that constitutes an abuse of right is unlawful.” Here the labor legislator seems to agree with those who claim that he knows little about law. Of course, it is true what is claimed – the unlawfulness of the abuse of right comes already from art. 334 of the Civil Code.  More specifically, jurisprudence and doctrine (as they should) have already solidly established the notion of abuse of rights in the denunciation during the trial period. Abuse of right is intended to act in cases where there is no rule explicitly reproving a behavior through which a right is allegedly exercised. It is believed that the precept in question is not only useless, but also inappropriate, a perspective that I share.

All in all, the recommended changes will tend to discourage even more the use of open-ended employment contracts. This is not what is needed in the labor market.

António Monteiro Fernandes @ Of Counsel, DCM | Littler