To close out the last year, we could not miss some final modifications and amendments that assist companies to face the labor reality for the beginning of 2023. There are countless challenges for national companies or foreign companies with operations or representation in Portugal.
Some relevant aspects to be taken into account are the Central Register of Beneficial Owner (RCBE – Registo Central do Beneficiário Efetivo) obligations (update) and the implementation of the Portuguese Recovery and Resilience Plan (Plano de Recuperação e Resiliência). Given the new renting rules, companies may need to reassess their internal management and workplace policies. In particular, on the prospects of the Government’s Decent Work Agenda proposal, the regime of Electronic Platforms for Passenger Transport Devices, especially regarding the new regimes on presumption (or presumptions?) of employment – hot topics. Will companies, with digital platforms, stumble upon the uber law? (see here).
Nevertheless, within the Courts, there have been some relevant decisions in various spectrums, which weren’t far from being less important than the enacted legislation. As is often argued: the decisions of the Courts are the supplement of our law or the creation of a new manner of interpreting the “law” or norm for the resolution of a dispute.
At the level of the legislative and lawmaking procedure:
- From the amendment to the legal regime of radiological protection, with labor amendments, particularly with regard to the determination of labor administrative offences and risk assessment (Decree Law No. 81/2022, of 6 December);
- The employees in public functions were subjects to valorization measures, regarding the their base remuneration and the updating of the general remuneration’s amounts, to be carried out by the Public Administration (Decree Law no. 84-F/2022, of 16 December);
- The amount of the Social Support Index (IAS) was updated: for 2023 its value is EUR 480.43 (Government Order no. 298/2022, of 16 December);
- The four-day working week deserved the Portuguese Government’s attention, although in prototype mode, or, in other words, in an experimental adoption without creating any type of obligation (voluntary adoption), according to the Government Order No. 301/2022, of 20 December;
- With the aim of providing greater social protection, the minimum wage was updated (Decree Law no. 85-A/2022, of 22 December), to EUR 760.00, as well as the social protection for vulnerable families in front of the extraordinary increase in prices (Decree Law no. 85-B/2022, of 22 December);
- At the level of the 2023State Budget (Act no. 24-D/2022, of 30 December), it is possible to observe some labor-related norms, namely regarding (i) daily allowances, (ii) overtime work and night work allowance, (iii) mobility duration, (iv) bonuses to performance, (v) recruitment, (vi) changes to the labor regime in the area of health (e.g. special hiring of retired doctors), (vii) complementary social protection of public entities’ employees, under the (private) employment contract regime, among others.
With regard to the decisional material, a few important observations:
- The CJEU, in the case “Udlændingenævnet” of 22.12.2022, no. C-279/21, ECLI:EU:C:2022:1019 came to determine that:
‘[A] national law, introduced after the entry into force of that decision in the Member State concerned, which makes family reunification between a Turkish worker lawfully residing in that Member State and his spouse subject to the condition that the worker passes an examination certifying a certain level of knowledge of the official language of that Member State, constitutes a ‘new restriction’ within the meaning of that provision. Such a restriction cannot be justified by the objective of ensuring the successful integration of that spouse, since that legislation does not allow the competent authorities to take into account either that worker’s own abilities to integrate nor other factors, other than passing that examination, which attest to the fact that the worker has actually integrated into the Member State concerned and, therefore, that he is able to help his spouse integrate into that State’.
- Unanimously, the Oporto Court of Appeal (In Portuguese – Tribunal da Relação do Porto, in English -…) (Judgement of 14.12.2022, case no. 16609/21.6T8PRT.P1) reinforced the rule that has been determined for the interpretation of collective agreements:
“The interpretation of the normative part of collective agreements must follow the rules of interpretation of the law, thus the regime resulting from Article 9 of the Civil Code, for which, it is important to bear in mind that the letter of the law – here the letter of the clause of the agreement -, this is not only the starting point of the interpretation, but the limit of it, which is of particular importance here, since the parties to an agreement must not obtain by the interpretation of the agreement by the court what they were unable to obtain in the negotiations”.
- Regarding the increase of working hours, the same Oporto Court of Appeal (Judgement. of 14.12.2022, case no. 5730/22.3T8PRT.P1) came to determine, also unanimously, that:
“Nothing prevents the “armoring” of working hours, requiring their alteration to be made by agreement, from being stipulated while the employment contract is being executed, namely in a transaction carried out in a legal action in which employer and worker are parties”.
- The Lisbon Court of Appeal (Judgement of 15.12.2022, case no. 14572/22.5T8LSB.L1-4) brought us, again, the issue of the workplace. Thus:
“It entails the risk of serious injury and of difficult – or impossible – repair of the worker’s right, the employer’s order given to him to report to work in Lisbon, in order to be on assignment for 6 years to another entity, if he performed his work as a journalist as the employer’s correspondent for more than 30 years in Brussels, where he lived with his family, having never worked in Lisbon, since carrying out the order would uproot him from his long-established environment and remove him from the center of his personal, family and social life, depriving him of the closeness which he enjoyed with his nuclear and even larger family, on a day-to-day basis”.
- The Lisbon Court of Appeal (Judgement of of 15.12.2022, case no. 590/21.4T8PDL.L1-4) also addressed the issue of harassment and work organisation:
“A situation of moral harassment is not demonstrated if what emerges, in essence, from the proven factuality are measures and decisions of the employer intended to regulate the organisation of work or to resolve conflicts between the worker and other persons or the employer itself, and it is not evidenced that they had any other objective or effect, other than these, namely that of disturbing or constraining the worker, affecting her dignity or creating an intimidating, hostile, degrading, humiliating or destabilizing environment for her”.
We will be keeping a close eye on further developments ahead.
Tiago Sequeira Mousinho @ DCM | Littler