NEWSLETTER I EMPLOYMENT LAW
CONTENTS EMPLOYMENT LAW NEWSLETTER I JUNE, 2017 I LEGISLATION II EXTENSION ORDERS III NATIONAL CASE-LAW
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EMPLOYMENT LAW NEWSLETTER
Decree-Law no.72/2017 Dirio da Repblica (official gazette) no. 118/2017, Series I, 21 June 2017 Establishes the rules governing the allocation of incentives for recruiting young first-time jobseekers and the long-term and very long-term unemployed. This Decree-Law was the subject of the Legal Flash on June 21, 2017.
II EXTENSION ORDERS
Area of Activity
Electrics, electrical appliances, photographic and electronics sector
Order no. 174/2017 - Dirio da
no. 102/2017, series i, 26-05-2017
Establishes the extension of the collective
bargaining agreement between AGEFE -
photographic and electronics sector
Business Association and FEPCES
Portuguese Federation of Business, Offices
and Services Trade Unions and others and
Casings and similar
Order no. 175/2017 - Dirio da
no. 102/2017, Series I, 26-05-2017
Establishes the extension of the
amendments to the collective bargaining
agreements between ITA Portuguese
Association of Manufacturers of Casings
and similar products and FESAHT - the
Federation of Farming, Food, Beverages,
Hospitality and Tourism Trade Unions and
others and between the said employers'
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association and SinCESAHT Business, Offices, Services, Food, Hospitality and Tourism Trade Union.
III NATIONAL CASE-LAW
Ruling by the vora Court of Appeal, April 28, 2017 Work accident disqualification of accident
The employee's spouse brought special proceedings arising from a work accident on her own account and as the representative of her dependent child, against the insurance company, suing it for amounts owing as a result of the work accident, which caused the employee's death.
The work accident in question occurred at Sines Container Terminal, following a collision between two vehicles used for transporting containers, one of which was being driven by the victim who was employed as a dock employee and who failed to stop the vehicle in question at a STOP sign. The victim had received occupational health and technical training including, inter alia, on traffic rules.
Despite acknowledging the work accident, the injuries sustained by the victim and which caused his death, the causal link between the accident and the victim's death, in addition to liability for work accidents having been transferred to it, the insurance company contested the case, rejecting liability for compensation for the accident, since it had occurred entirely at the victim's responsibility: "(i) on the one hand, because he had been provided with training in occupational health and safety, which encompassed, inter alia, traffic rules and the accident occurred because the victim was driving a vehicle on the premises of the Port of Sines at "high speed" and failed to stop at a STOP sign, thence colliding with another vehicle; (ii), on the other hand, because by driving in the said manner, the victim totally ignored basic safety rules, taking a reckless and unnecessary risk through a driving maneuver, which entailed a serious danger of colliding with other vehicles".
The insurance company based its opinion on Article 14 of Act 98/2009 of 4 September, which establishes work accident and occupational illness compensation arrangements. It sets out that employers do not have an obligation to compensate, inter alia, damages arising from an accident that (i) was willfully caused by the victim or was the result of his acts or omissions which equate to an unjustified breach of employer or statutory safety conditions; (ii) arose exclusively from the victim's gross negligence.
The Court of First Instance ruled in favor of the plaintiff and ordered the insurance company to pay the amount requested.
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The insurance company lodged an appeal to determine whether or not the accident should be disqualified as a work accident, since it originated in the victim's wil lful conduct or an act or omission on his part which equated to an unjustified breach of the employer's or statutory safety conditions.
The vora Court of Appeal upheld the ruling of the Court of First Instance whereby the fact that the victim had not stopped his vehicle at a STOP sign did not disqualify the accident as a work accident.
Firstly, the victim's intention was not proved and secondly, in accordance with case -law, all the following conditions must be met for an accident to be disqualified: (i) employer or statutory safety conditions must have been defined; (ii) the victim must have breached such conditions through an act or omission; (iii) his conduct must have been voluntary and unjustified, albeit unintentional; (iv) the accident was the result of this action.
The precondition of having breached employer or statutory safety rules does not encompass any and all safety rules, but merely specific company or statutory rules connected to performing work duties agreed to by the victim and which seek to protect employee safety by removing or reducing risks to health, life or physical integrity. Hence, it only encompasses special safety conditions for specific target groups (for example, rules establishing maximum driving times and mandatory rest periods for road transport operators).
As a result, in the case under review, the victim broke a Highway Code rule (obligation to stop at a STOP sign) which is applicable to all road traffic and imposed on any and all drivers on the premises, regardless of whether or not they are carrying containers to a vessel.
The Court, therefore, ruled that the victim's infringement of a road traffic rule did not constitute a breach of any specific employer or statutory safety rule connected to the victim's work and thus could not be disqualified as a work accident.
Supreme Court ruling, March 30, 2017 Remuneration on-call allowance and driving allowance
The employee brought proceedings against his employer to sue for the following payments: (i) the differences in remuneration between the amounts received as holiday pay and holiday allowance and Christmas allowance and the real amounts owing, calculated on the basis of average monthly remuneration received including performance-related pay; special lunch allowance; special meal allowance; remunerated compensatory time-off; overtime; night work; on-call and driving risk allowances and (ii) future differences and respective interest on amounts owing, until full payment has been made.
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The case in hand which was referred to the Supreme Court of Justice concerned whether or not the on-call and driving allowances paid to the employee should be included in the calculation of holiday and Christmas allowances.
The Court of Appeal overruled the Court of First Instance by ruling in favor of the plaintiff on this issue.
The employer contested the decision with the view that the allowances in question were not remuneratory in nature, since they were not paid in return for work and were not in the least connected to specific job requirements.
Unlike the Court of Appeal, the Supreme Court of Justice ruled in favor of the employer, stating that "remuneration comprises the various amounts (in money or kind) that the employer is obliged to pay employees on a regular and periodic basis in return for work performed. It does not include monetary payments made by the employer which are not made in return for work carried out" and that "monetary amounts paid every business month in the year are considered to be regular and periodic and consequently form part of the concept of remuneration for the purposes of calculating holiday pay and holiday and Christmas allowances".
It was proved in this case that the employee had received the on-call and driving allowances during 11 months of each year for several years, thereby fulfilling the requirement of being a regular and periodic payment.
Nevertheless, the Supreme Court of Justice stated that "in view of the reciprocal nature of employment contracts, the regular and periodic nature of monetary payments is not the only point of law that must be considered, such payments must also be made in return for work and not as a means of rewarding the employee for any other situation".
Therefore, since it was proved that the on-call allowance merely served to reward the employee for being available for work when at his place of residence and its payment was not contingent upon the performance of any task, the terms under which the on-call allowance was paid do not constitute a payment in return for performing the tasks agreed to by the employee, "they merely aim to compensate the employee for depriving him of the complete enjoyment of his rest period, since although he is resting at his place of residence, he is at the company's disposal for performing duties solely in the sphere of urgent vehicle repairs".
The driving allowance is not a reciprocal payment for performing work either since the latter comprises the maintenance and repair of ancillary equipment for telecommunicat ions infrastructure networks whereas the former aims to compensate the employee for having
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to drive his car when on call, which is not part of his work duties, but which he had to do in order to travel to the place where he was needed to perform his agre ed work.
Therefore, since the on-call and driving allowances are not paid in return for work, the Supreme Court of Justice ruled that they did not form part of the concept of remuneration and therefore, did not have to be included in the calculation of holiday pay and holiday and Christmas allowances.
CUATRECASAS, GONALVES PEREIRA & ASSOCIADOS, RL Sociedade de Advogados de Responsabilidade Limitada
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