Note: A foreign worker who comes to Portugal to work in a posting regime must gather information, in his native country, through the competent labour authorities, on the employer's obligations under the legislation of the country of origin.
With the entry into force of the Directive 2014/67/ EU of the European Parliament and of the Council of 13 May 2014, certain provisions have been introduced concerning the posting of workers in the framework of the pro-vision of services, namely:
Posting declaration
The employer is obliged to report the posting to ACT with certain information, namely: the identity of the ser-vice provider; the number and identification of the workers to be posted; Identification of the liaison person; the estimated duration and estimated dates for the start and end of the posting; the address (es) of the work-place; The nature of the services justifying the posting.
For communication purposes please use the form available below: http://www.act.gov.pt/(pt-PT)/CentroInformacao/Formularios/Documents/Formulario_destacamento.doc
The communication must be sent to the email address: destacamento@act.gov.pt
Other obligations
The employer is required to appoint a liaison person with ACT and, if applicable, to liaise with the social part-ners.
During the entire period of the posting, the employer must keep hard copies or in electronic format of the employment contract, payslips and proof of payment, and records of working time in an accessible place and clearly identified in the Portuguese territory, namely: (1) the workplace referred in the declaration; (2) the con-struction site; (3) the basis of operations or the vehicle with which the service is provided. The documents mentioned above, when requested by ACT, are presented in Portuguese or accompanied by a certified transla-tion.
The employer must submit the documents mentioned above, when notified by ACT, within one year after the end of the posting.
The direct employer contractor who posts workers may be held jointly liable for any delayed net payment due to the posted worker. (NOTE: This obligation only applies to workers posted by service providers estab-lished in the European Economic Area).
Posting of workers in Portugal
Posting of workers in Portuguese territory is established in Articles 6 and 7 of the Labour Code.
The Posting presupposes that the worker, hired by an employer established in another State and for the dura-tion of the employment contract, provides his activity in Portuguese territory in an employer's establishment, or in execution of a contract concluded between the employer and the beneficiary of the activity, even in a re-gime of Temporary work.
In Portugal, a posted worker is considered to be a subordinate worker who is obligated, through retribution, to perform his activity under the authority and direction of a company, in the context of a service provided temporarily by that company to another company whose place of work is based in Portuguese territory.
In any case, there must be a working relationship between the company that posts and the posted worker.
Rights of the posted worker
The posted worker shall be entitled to the same working conditions as nationals of the country of destination if they are more favorable, in particular as regards: job security, maximum working time, minimum rest periods, holidays, minimum wage and payment of supplementary work, assignment of workers by temporary employ-ment agency, occasional assignment of workers, occupational safety and health, protection in parenthood, protection in the work of minors, equal treatment and non-discrimination.
The minimum wage includes the subsidies or allowances granted to the worker in the frame of the posting that do not constitute reimbursement of expenses incurred, namely travel, accommodation and meals.
Safety at work
In Portugal, dismissal is prohibited without just cause or for political or ideological reasons.
Verbal dismissals are not allowed and the employment contract can only be terminated by one of the forms provided in the labour code.
In the event of dismissal in violation of legal provisions, it may be declared unlawful by recourse to the com-petent courts, with the possibility of reintegration of the worker.
Protection regarding dismissal of pregnant workers, workers who have recently given birth or are breastfeeding, or workers on parental leave requires the prior opinion of the competent authority in the field of equality between men and women (Commission for Equality in Work and Employment).
Dismissal due to a fact attributable to pregnant workers, workers who have recently given birth or who are breastfeeding, or to a worker on parental leave shall be presumed to be without just cause.
You can consult the information in the Labour Code, approved by Law no. 7/2009, of February 12:
Title II - Work contractChapter VII - Termination of work contractSection IV - Dismissal by initiative of the employer
Available at: http://www.act.gov.pt/(pt-PT)/Legislacao/Documents/CodigoTrabalho.pdf
Maximum length of working time
Work time is any period during which the worker performs his activity or is at the disposal of the employer. Time breaks and interruptions are also considered.
Working time consists of determining the hours of the beginning and end of the normal daily working period and rest interval, as well as the weekly rest. The employer must affix the working time map to the place of work to which it relates, in a prominent place.
The maximum weekly working time is 40 hours and the normal daily working period cannnot exceed 8 hours.
Title II - Employment contractChapter II-Provision of workSection II- Duration and organization of working time
Minimum rest periods
The working period shall be interrupted by a rest break of not less than 1 hour neither more than 2 hours, so that the worker does not provide more than 5 hours of consecutive work.
Is guaranteed to the worker a minimum resting period of 11 consecutive hours between two consecu-tive daily periods of work.
The worker has the right to, at least, one day of rest per week, which should normally be Sunday.
Title II - Employment contractChapter II-Provision of workSection II - Duration and organization of working timeSubsection III- Working Hours
Available in: http://www.act.gov.pt/(pt-PT)/Legislacao/Documentos/CodigoTrabalho.pdf
Holidays
Workers have the right to a paid holiday period in each calendar year, and must be carried out in such a way as to enable the physical and psychological recovery of the worker and ensure minimum conditions of personal availability, integration into family life, participation and culture.
The annual holiday period has the minimum duration of 22 working days.
Title II - Employment contractChapter II-Provision of workSubsection II - Limitations on the duration of workSubsection X- Holiday period
Available in: http://www.act.gov.pt/(pt-PT)/Legislacao/Documents/CodigoTrabalho.pdf
Minimum wage and extra work pay
It is considered retribution the payment which, according to the contract, and the norms or rules that govern it, the employee is entitled as consideration for his work, which includes the basic remuneration and all regular and periodic payments made, directly, or indirectly, in cash or in kind.
Workers have the right to:
- The value of the national minimum wage is fixed by the Government. In 2018 the value is set at€ 580,00 monthly. In the case of a collective agreement or other collective regulation instrument of general application, this will be the value to be considered, according to the professional category.
- a Christmas allowance in a valor equal to a month's wage, which must be paid until the 15th of December of each year.
-the wage concerning the holiday period, as if they were in effective service and besides that, a holiday allowance.
- when providing night work, it must be paid with an increase of 25% in relation to the wage of equivalent work performed during the day, if other amounts are not provided for in an applicable collective agreement.
- when providing extra work on a workday, the worker is entitled to the following increases (25% of the first-hour wage and 37.5% of the wage in the following hours or fractions), if other amounts are not provided for in an applicable collective agreement.
- when providing additional work on a weekly, compulsory or complementary rest day, or on a public holiday, the worker has the right to 50% of remuneration for each hour worked, if other amounts are not provided for in an applicable collective agreement.
Title II - Employment contractChapter III - Remuneration and other capital benefitsLaw establishing the RMG
Assignment of workers by temporary work agency
Temporary workers have the right to the minimum wage of an applicable collective agreement with the temporary employment agency or the user, according to their functions, or the one practiced by the user for equal work or of equal value, whichever is more favorable. The worker has the right to holidays and Christmas allowances, in proportion to the duration of his respective contract, as well as to other regular and periodic benefits to which the user's workers have the right for equal work or of equal value.
Title II - Labour contractChapter I - General ProvisionsSection IX - Modalities of labour contractSubsection VI - Temporary work
Occasional assignment of workers
The occasional assignment of a worker consists in the temporary provision of a worker by the employer to provide work to another entity, under whose power he will be subjected to, maintaining the initial contractual relationship.
The assignment depends on an agreement between the assignor and assignee, subject to written form, which must contain the identification, signatures and address or headquarters of the parties, the identification of the assigned worker, indication of the activity to be provided, indication of initiation date, duration of the assign-ment, and declaration of agreement by the worker.
The assigned worker has the right to the minimum wage which, in an applicable collective agreement to the assignor or assignee, correspondent to his duties for the same functions, or to the remuneration received at the time of assignment, according to whichever is higher. He has also the right to holiday allowance and Christmas allowance and other regular and periodic benefits to which the assignee workers have the right for equal work, in proportion to the duration of the assignment.
Title II - Labour contractChapter V- Contractual vicissitudesSection II - Occasional assignments of workers
Safety and health at work
The Portuguese legislation on occupational safety and health is characterized by a set of rules based on the responsibility of the employer to ensure the safety and health of workers, including posted workers, in all aspects related to work.
Title II - Employment contractChapter IV - Prevention and reparation of occupational accidents and diseases
And the legislation available at: http://www.act.gov.pt/(pt-PT)/Legislacao/LegislacaoNacional/Paginas/default.aspx
Protection in parenthood
The initial parental leave is 120 or 150 consecutive days. The working mother and father have the right, by birth of child, to this leave, they may share and take after the childbirth.
This initial parental leave is increased by 30 days if each parent is to enjoy a period of 30 consecutive days, or 2 periods of 15 consecutive days, after the period of compulsory leave by the mother (which is six weeks of leave after childbirth) (Articles 40 and 41 of the Labour Code).
These licenses are subsidized by Social Security, if discounts are made for the Portuguese Social Security.
The pregnant worker has the right to be released from work for prenatal medical appointments, for the time and number of times necessary, including preparation for childbirth.
The exemption for breastfeeding regards two hours of work per day, without loss of wage. For the pur-poses of these exemptions it is obligatory to communicate to the employer ten days in advance of its begin-ning.
Theexemption for night work is guaranteed up to 112 days before and after delivery and for the remaining period of pregnancy and for as long as breastfeeding lasts, if this is necessary for the health of the worker or the unborn child. For this exemption the worker must inform the employer and submit a medical certificate attesting this need.
It is not mandatory to provide extra work for pregnant workers or for workers with a child under 12 months of age.
Title II - Labour contractChapter I - General provisionsSection II - SubjectsSubsection IV- Parenting
Protection in child labour
The employer must provide minors with working conditions appropriate to their age, protecting their safety, health, physical, mental and moral development, education and training, in particular by preventing any risk arising from lack of experience, unawareness of existing or potential risks or the minor’s level of development.
Only the following underaged are admitted to work:
- At the age of 16, compulsory schooling and having adequate physical and mental abilities for the job;
- Under 16 years of age if they have completed compulsory schooling or are enrolled and attending secondary level of education, may undertake light work;
- Under 16 years old who if they have completed compulsory schooling or is enrolled and attending secondary level of education but without a professional qualification or who is 16 years of age but without compulsory schooling, is not enrolled and attending secondary level of education or don’t have a professional qualifica-tion, can only be admitted to work if they are in the form of education or training which, depending on the case, gives them compulsory education, professional qualification or both.
Title II - Labour contractChapter I - General provisionsSection II - SubjectsSubsection V- Child labour
Equality of treatment and non-discrimination
The employer may not discriminate by reason of ascendancy, age, gender, sexual orientation, gender iden-tity, marital status, family status, genetic heritage, reduced working capacity, disability or chronic illness, na-tionality, ethnic origin, religion, political or ideological convictions and trade union membership.
Equality and non-discrimination on the basis of gender is guaranteed in access to employment (job placement and recruitment announcements) in the professional activity (wage and professional career) and in training.
Title II - Labour contractChapter I - General provisionsSection II - SubjectsSubsection III - Equality and non-discrimination
Other information
Portugal
In Portugal, ACT – Authority for Working Conditions - promotes and controls compliance with legal, regulatory and conventional provisions regarding working conditions and is the liaison service related to the legal provi-sions of posted workers.
Connection service contact:
Authority for Working Conditions (ACT)Avenida Casal Ribeiro, nº 18-A1000-092 LisbonTel .: +351 213 308 700Fax: +351 213 308 706E-mail: dsaai.mail@act.gov.pt
As a liaison office, it cooperates with the labor inspection services of other Member States and provides in-formation about working conditions.
You can fill a complaint regarding matters within the scope of ACT here:
http://www.act.gov.pt/(pt-PT)/Itens/QueixasDenuncias/Paginas/default.aspx
Contact of the service and the person responsible for providing information on the posting of workers in ACT:
Department for the Support of Inspection Activity DirectorAvenida Casal Ribeiro, nº 18-A1000-092 LisbonTel .: +351 21 330 8700Fax: +351 21 330 8706E-mail: dsaai.mail@act.gov.pt
There are currently in Portugal several Institutions / Entities that, in addition to ACT, have the at-tribution of providing support, in various forms, to posted workers:
Public Prosecutors: Together with the Labour Court, it exercises the unofficial sponsorship of workers and their families (eg. work accident) in defense of their social rights: http://www.pgr.pt/index.html
Lawyers Order: Office of Legal Consultation. This Office assures information and legal consultation in several delegations of the Order. As an example: http://www.oa.pt/cd/Conteudos/Artigos/detalhe_artigo.aspx?sidc=32580&idc=32583&ida=105086
Labour Mediation System: The SML is a service promoted by the Ministry of Justice, which aims to allow the out-of-court settlement of labour disputes. The SML is competent to mediate all labour disputes resulting from the individual contract of employment, when the matters don’t concern inalienable rights, and when is not the result of a work accident, namely, the following matters:
http://www.dgpj.mj.pt/sections/gral/mediacao-publica/sistema-de-mediacao5560
Legal Protection of Social Security: Legal protection is a right of individuals who don’t have the economic conditions to access the law and the courts.
http://www4.seg-social.pt/documents/10152/15011/proteccao_juridica
CNAIM / CLAIM: The National Immigrant Centre Support and the Local Immigrant Support Centers as the goal to respond to the needs of immigrant citizens in several areas, including labour issues.
http://www.acm.gov.pt/-/cnai-centro-nacional-de-apoio-ao-imigrante
http://www.acm.gov.pt/-/rede-claii-locos-de-apoio-a-integracao-de-imigrant-3
About working conditions in each sector of activity (The collective labour agreements are applicable to employers and workers affiliated in employers' associations and labor unions.
Eventually, if one or both of the parties are not affiliated, collective labour agreements may be applicable to employers and workers through the existence of extension orders issued by the government.)
The instruments of collective regulation can be consulted at:
www.act.gov.pt/(pt-PT)/Legislacao/ContratacaoColetiva/Paginas/ContratacaoColetiva.aspx
www.dgert.mtss.gov.pt/work/Pesquisa/menu_geral_cc.php
http://bte.gep.msess.gov.pt/
About Social Security
Social Security - http://www4.seg-social.pt
Commissions
Commission for Equality in Work and Employment (CITE) - www.cite.gov.pt
Trade Unions
General Confederation of Workers - www.cgtp.pt
General Union of Workers - www.ugt.pt
Employers Unions
Confederation of Portuguese Industry - www.cip.org.pt
Confederation of Farmers of Portugal - www.cap.pt
Confederation of Commerce and Services of Portugal - www.ccp.pt
Confederation of Portuguese Tourism - www.confederacaoturismoportugues.pt
European Union
Information about posting of workers
http://europa.eu/youreurope/citizens/work/work-abroad/posted-workers/index_pt.htm
National liaison services
http://europa.eu/youreurope/citizens/national-contact-points/index_pt.htm
EURES
European Job Mobility Portal - https://ec.europa.eu/eures/home.jsp?lang=pt