International June 2018
PORTUGAL: POSTING OF WORKERS WITHIN A PROVISION OF SERVICES
1. REGULATORY REFERENCES FOR THE DIRECTIVE TRANSPOSITION
In Portugal, cross-border posting of workers for provision of services is governed by that set forth in Act 29/2017, of 30 May, transposing Directive EC 2014/67, which provides for all cases in which any worker of a Member State must carry out his/her activities in Portugal or in such cases in which the Portuguese company may post any of its employees to carry out its labour activities in another country, as in the cases of supplies or contract awards.
2. APPLICATION SCOPE
Act 29/2017 is applied to companies established in another Member State of the European Union which, within a provision of services, may post to Portugal one or more of their workers, in favour of a company even belonging to the same group, other production unit or other recipient, provided that during the term of such posting, a labour relationship still exists with the posted workers.
The regulatory regime is also applicable to service providers established in Portugal which may post their own employees to another Member State.
The posting regime in the Portuguese territory is not applicable to Merchant Shipping seagoing personnel.
LABOUR AND OCCUPATIONAL CONDITIONS TO BE APPLIED AND GUARANTEED TO POSTED WORKERS
Posted workers, unless in better labour conditions legally or contractually set forth, are entitled to, during the term of their posting, the same labour and occupational conditions provided for Portuguese workers carrying out analogous labour services as an employee in the place where the posting takes place in terms of:
a. Protection and guarantee of the job;
b. Minimum working time;
c. Minimum rest period;
e. Minimum remuneration and additional work;
f. Assignment of workers by temporary work agencies;
g. Occasional assignment of workers;
h. Safety, hygiene and health;
i. Protection in the event of maternity or paternity;
j. Protection of minor workers;
k. Equal treatment and non-discrimination.
Without prejudice to the foregoing, holidays, regulatory and contractual provisions on minimum annual remunerated holidays and minimum wage, including the increases for additional works, are not applicable to works of good suppliers for the execution of their initial assembly or first installation of goods set forth in a supply of goods agreement and which are indispensable to put the good into operation so supplied and executed by qualified or specialist workers of the supply company, when the duration of such works, in relation to which the posting has been scheduled, does not exceed eight (8) days, excluding the activities of the construction sector within the scope of repair, maintenance, modification or removal of constructions or buildings, and particularly:
- Assembly and disassembly of pre-manufactured elements;
- Structures or tools;
- Maintenance, painting and cleaning works;
OBLIGATIONS BY THE POSTING COMPANY
The service provider (i.e., the company established in another Member State or a third State or a temporary employment agency established in a Member State) that may post workers to Portugal is obliged to report in advance to the Portuguese authorities in charge of the labour conditions control, the ACT (dependent on the Ministry of Labour) a series of information relating to the posting.
Particularly, the company must send before the work of the posted worker may start, certain information such as, for example:
- Identifying details of the posting company;
- Number and nature of the workers posted;
- Identification of a reference and contact person with the ACT for the delivery and receipt of documents or to negotiate with the social parties;
- Starting, termination date and duration of the posting;
- Place where the provision of services will be executed;
- Typology of services.
Reporting of such dada shall be made by fulfilling the specific form of the ACT, available on the ACT web:
In addition to the communication prior to the posting, the posting company must have, in soft and hard copy, a copy of the work contract, payrolls, registers of working time and receipts of wage payments.
Such documents shall be preserved and be submitted to the ACT at the request of the latter up to one (1) year counted from the termination of the posting situation.
If such documents are required, they shall be submitted in Portuguese or together with its Official Translation.
It must be mentioned that, during the term of the posting, such documents shall be preserved in the Portuguese territory, in an accessible location, and rapidly available, such as, for example, the work place declared in the posting form, in the site or in the base of operations or in the vehicle in which the work is carried out.
In the event of simulated posting, the worker shall be considered, for all purposes, as reliant on the subject that would have benefited from the provision of services. Irrespective of the fact that the posting may be true, anyone who may have used the (subcontracting) provision shall be jointly and severally liable with the original employer for any minimum net remuneration contractually guaranteed and which may have not been paid.
In the event of breach of the standards on notice before starting the posting, such as the ACT form, or in the event of non-availability of the necessary and mandatory documents during the term of the posting in the relevant places and/or their diligent submission, or in the event of lack of translation into Portuguese, a serious penalty shall be applied.
The amount of the penalties within the Labour Law is determined by the control authority (the ACT) between a minimum and a maximum legally established, which varies according to three (3) criteria:
- Seriousness (minor, serious or very serious)
- Degree of culpability (negligence or wilful misconduct)
- Size of the company (micro-companies, small medium or large-sized businesses) and/or their turnover
In cases of serious penalties and according to the turnover/invoicing and the degree of culpability, such pecuniary penalties may range from a minimum of 6 CU 612.00 € to a maximum of 95 CU 9,690.00 € (the CU is the reference unit that currently is equivalent to 102.00 Euros).
It must be said that the reference and contact person of the ACT to be identified in the posting notice form, although it is not expressly forbidden, but could be a person authorised for possible negotiations with the social partner (unions), may not be the employee in question but another person (both employee and advisor) of the posting company.
With the collaboration of the firm Paolo Pozzan Advogados – Paolo Pozzan