Introduction
Amendments
Introduction
Law 28/2016 was published on August 23 2016. Under the heading 'Combatting modern forms of forced labour', the law introduces amendments to the Employment Code (approved by Law 7/2009) regarding the rules promoting health and safety at work (approved by Law 102/2009). It also amends the rules regarding the operation and licensing of private placement and temporary employment agencies (approved by Decree-Law 260/2009).
The changes increase the responsibility of employers regarding:
- temporary employment;
- the occasional provision of workers; and
- the provision of services on the premises of the entity that benefits from them.
Article 174(2) of the Employment Code provided that a firm using temporary employees had subsidiary responsibility for an employee's credits (eg, holiday pay and bonuses) for the first 12 months of work, as well as the corresponding social security contributions.
Under the changes introduced, Article 174(2) of the Employment Code provides that:
"The temporary employment agency and the user of temporary work, as well as their respective managers, administrators or directors, and any companies with which the temporary employment agency or the user are in a reciprocal shareholding, control or group relationship, are responsible on a subsidiary level for the credits of the employee and for the corresponding social charges, as well as for payment of the respective fines."
In the wording introduced by Law 28/2016, Article 16 of the rules on promoting health and safety at work establishes that:
"The owner of the construction, company or agricultural operation and the user company or the company that was awarded the work or service, as well as the respective managers, administrators or directors, and any companies with which the owner of the construction, company or agricultural operation, the user company or the company that was awarded the work or service is in a reciprocal shareholding, control or group relationship, are jointly and severally responsible for any violations of the legal provisions relating to the health and safety of temporary workers, of workers provided to them on an occasional basis or workers in the service of service provider companies, while those workers are working at their premises, and for the payment of the respective fines."
Further, Article 13 of the rules regarding the operation and licensing of private placement agencies and temporary employment agencies establishes that:
"The user, and the respective managers, administrators or directors, and any companies with which they are in a reciprocal shareholding, control or group relationship, are jointly and severally liable for the breach by the temporary employment agency of the legal charges and obligations relating to the workers, and for the payment of the respective fines."
In light of the above, the user company ceases to be the only party with subsidiary responsibility for an employee's credits. A temporary employment agency and its managers, administrators or directors – as well as any companies with which the temporary employment agency or the user company are in a reciprocal shareholding, control or group relationship – are also responsible.
Finally, these entities are jointly and severally responsible for the credits of employees for the first 12 months of work, as well as:
- any other credits (with no time restriction);
- the corresponding social security contributions; and
- the payment of any corresponding fines.
Law 28/2016 came into force on September 22 2016.
For further information on this topic please contact Filipe Azoia at AAMM Sociedade de Advogados RL by telephone (+351 211 940 538) or email ([email protected]pt). The AAMM website can be accessed at www.aamm.pt.