As we know and by the provisions of art. 2 of Decree Law no. 206/2009, of 31st August, temporary work companies are defined as singular or collective persons whose activity is developed in the temporary cession to users of the activity of workers that, for that purpose, they hire and remunerate. In this sense, these are companies that develop and carry out the entire process of recruitment and selection of employees for their client companies.
However, one of the objectives of the “Agenda do Trabalho Digno (in english, Decent Work Agenda) is to “combat the abusive use of temporary work”.
If we look at the data from the Single Report on the activities of temporary employment agencies, the incidence of non-permanent contracts stood at 96% in 2019, up from 89% in 2010.
In this sense, in the alterations foreseen for the Portuguese Labour Code, significant changes arise at the administrative offence level. In other words, if we look at clauses 7 and 8 of article 16 of the diploma, there is an extension of the necessary requirements for the company to be able to exercise its activity (with the addition of the suitability requirements; the adequate organisational structure; and the proof of the declaration of the beneficial owner or the respective access code), through the addition of the need to have an adequate organisational structure, respectively, the lack of which corresponds to a very serious administrative offence.
On the other hand, and in a positive note, paragraphs 1 and 3 of article 7 of the legal regime for the exercise and licensing of private employment agencies and temporary work companies, now provide a higher value for the deposit. As we well know, this deposit is intended to guarantee the liability of temporary employment companies for the costs incurred with the workers temporarily assigned. This means that the higher the deposit to be provided, the greater the protection to the worker because there is a higher guarantee of the payment of wages.
However, we must point out the change made regarding the integration of workers. Although it was made with the best of intentions, it still raises doubts, given the reality of the rendering of temporary services by a worker integrating these organisational structures.
Proof of this is the criticism made by the Portuguese Association of Private Employment and Human Resources Companies (APESPE-RH), which stated that this measure jeopardizes private initiative. Although this limit has been imposed in order to prevent the successive resort to this type of work considered more “precarious” and, in the words of the Government, aims at the “promotion of sustainable employment”, we cannot help but ponder the hypothesis that, although a worker has been needed over the course of 4 years, the fact of becoming part of the company’s staff in a compulsory manner may result in a mismatch of the service required and the qualifications of this same worker.
Therefore, and as questioned by APESPE-RH, could this not be a violation of Article 66(1) of the Constitution of the Portuguese Republic? In other words, we must question whether the legislator did not have other, less restrictive means to achieve the same objective, safeguarding constitutionally protected interests or assets, namely the free exercise of private economic initiative.
We await the application of the law, as well as the opinion of the Courts when asked to decide on this matter.
Maria Beatriz da Silva, António Monteiro Fernandes @ DCM | Littler