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    April 14, 2023
    “Decent” Work Agenda. Amendments to the Employment Code

    On 3 April 2023, the Employment Code approved by Law No. 7/2009 was amended through Law 13/2023 within the framework of the “Decent Work” Agenda.
    This amendment to the Employment Code not only changes the wording of several articles, but also adds many others and modifies the systematic organisation of the Code.

    Several changes are introduced in order to include new types of employment contracts, namely those resulting from the provision of work through digital work platforms, providing even more guarantees for employees in order to avoid labour precarity. We would also like to highlight substantial changes in the new trial period regime, new provisions regarding the status of “trabalhador cuidador” (caregiver employee) in several legal matters and the creation of more demanding requirements in some forms of contract termination, which we will list below among the most relevant.

    As a first amendment, we would like to highlight the one that was inserted regarding initial parental leave, which states that “in the event of opting for initial parental leave of the duration set forth in no. 1 or in no. 3, the parents may, after taking 120 consecutive days, cumulate, on each day, the remaining days of the leave with part-time work”. In such a case the cumulation with part-time work will imply half a day’s work. A second change was introduced regarding the father’s exclusive parental leave, increasing to 28 days the number of mandatory days to be taken by the father in the 42 days following the birth of the child, 7 of which must be taken consecutively immediately after the birth.

    It is also increased to seven days the number additional of days that the father can take off, provided that they are taken at the same time as the mother’s initial parental leave. A relevant change has also been made with regard to complementary parental leave, adding the option to work part-time for three months, with a normal work period equal to half of the full time, provided that the leave is taken in its entirety by each parent.

    Absence to work due to gestational bereavement is now also provided for, including situations that do not entail the loss of any rights and are considered to be effective work performance. In cases where interruption of pregnancy leave is not available, both the mother and the father may be absent for reasons of gestational bereavement for up to three consecutive days. The trial period regime has suffered relevant alterations, whereby in the absence of a provision in the Employment Contract no trial period will be applied.

    Regarding the duration of trial period, in situations of first job search and long-term unemployed, the trial period is reduced or excluded depending on whether the duration of the previous fixed-term employment contract with a different employer was of at least 90 days or more. The trial period is also reduced depending on whether the duration of the professional traineeship with positive evaluation, for the same activity and different employer, was of 90 days or more, in the last 12 months. This regime also suffers alterations with regards to termination by the Employer during the trial period, increasing to 30 days notice by the employer, if the trial period lasted more than 120 days.

    It is also added the need for the employer to communicate to the entity with competence in the area of equal opportunities between men and women (CITE), within 5 working days from the date of termination, in the case of termination of the contract during the trial period of a “trabalhador cuidador” (caregiver employee). It is now also mandatory for the employer to inform the ACT within 15 days of the termination of the contract during this period for first-time job seekers and long-term unemployed workers.

    With regards to fixed-term contracts, it is now mandatory for the employer to communicate to the CITE, 5 days in advance, the reason for the non-renewal of the contract whenever a “trabalhador cuidador” (caregiver employee) is involved. The remote work, as predicted by its actuality, also experienced changes.
    Regarding the equipment and systems in a remote work, it is now foreseen that the employment contract and the collective employment contract must fix the amount compensation due to the employee for additional expenses inherent to the activity. If there is no agreement in relation to expenses, the Law provides that additional expenses are considered to be “those corresponding to the acquisition of goods and or services that the employee did not have before the conclusion of the agreement, as well as those determined by comparison with the homologous expenses of the employee in the last month of work in a presencial regime”, this compensation is considered, for tax purposes, a cost for the employer and does not constitute income of the employee.

    The regime for the duration of temporary employment contracts has also been altered and now stipulates that “without prejudice to the provisions of the previous numbers, the duration of successive temporary employment contracts in different users, concluded with the same employer or company in a group or control relationship, or that maintains common organizational structures, cannot exceed four years”, exceeding temporary contract will be converted into an employment contract of long term  fortemporary assignment.

    In relation to absences to work due to the death of family members, the number of days considered to be justified absence has increased, to 20 consecutive days for the death of a spouse not legally separated or equivalent, a child or stepchild, and to 5 consecutive days for the death of a relative or close relative of the first degree in the direct line.

    Absence to care for a member of the household extends to “trabalhadores cuidadores” (caregiver employees) who are recognized as informal caregivers. The method of payment for overtime work was also altered, differentiating between overtime work of work up to 100 hours per year, which will now be paid at the hourly rate with the same increases provided for herein, and supplementary work in excess of 100 hours per year, which will now be paid at the hourly rate plus 50% for the first hour or fraction thereof and 75% for each subsequent hour or fraction thereof on a workday, plus 100% for each hour or fraction thereof on a mandatory or complementary weekly rest day or on a holiday.

    A relevant change is the one introduced with regard to employment credits and their time limitation, providing that the waiver by the employee of such credits will not be considered valid even if it is included in the agreement. In the termination of a fixed-term or undetermined-term employment contract, the value of the corresponding compensation is increased to 24 days of basic pay (previously 18 days).

    Finally, employees who have been recognized as victims of domestic violence are now exempt from having to give prior notice when terminating their employment contract.
    In addition to all the changes to the Code, several articles have been added, of which we highlight the one that provides for the new presumption of an employment contract regarding work with digital platforms. This new presumption lists some of the indicators that, when verified, characterize an employment contract between the provider of the activity and the digital platform. This presumption also provides for joint liability between the digital platform and the natural or legal person acting as an intermediary of the digital platform, for the employee’s claims arising from the employment contract, or from its breach or termination. It is also clarified that in cases where there is an employment contract, the rules foreseen in the Employment Code that are compatible with the nature of the activity performed shall apply, namely the provisions regarding accidents at the workplace, contract termination, dismissal without just cause, minimum pay, holidays, limits on normal working hours, equality and non-discrimination. It is a very serious misdemeanor imputable to the employer (it is not considered a crime), be it a digital platform or the intermediary of the digital platform, to contract the provision of activity, in an apparently autonomous manner, under conditions that resemble an employment contract, which may cause damage to the employee and the State.

    It is also clarified that the presumption of employment applies to the activities of digital platforms, namely those that are regulated by specific legislation on individual and remunerated passenger transport in vehicles not equipped with an electronic platform, as is the case of TVDE.
    A new provision was also added regarding the student’s employment contract, in effect during school vacations or school breaks, which is not subject to written form; however, the employer must communicate the contract to the competent social security service, using an electronic form.

    The concept of “trabalhador cuidador” (caregiver employee) appears in article 101-A, an addition that has altered several legal provisions, as analyzed throughout this article.

    Finally, the Law has prohibited the use of outsourcing services, not being allowed to use the acquisition of external services from a third party entity to meet the needs of a role whose contract was terminated in the previous 12 months due to collective dismissal or extinction of the job position. The intention is to prevent the possibility of replacing, through outsourcing, the role that was previously assigned to an employee of a company whose contract was terminated due to the extinction of the job position or collective dismissal.

    This Law, which includes the transposition of several European Union Directives, the alteration of the Employment Code, under analysis here, and many other separate legal diplomas, will come into force on May 1st, 2023.

    April 14, 2023
    Employment Department

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