NEWSLETTER I EMPLOYMENT LAW
CONTENTS EMPLOYMENT LAW NEWSLETTER I SEPTEMBER, 2017 I LEGISLATION II EXTENSION ORDERS III NACIONAL CASE-LAW IV INTERNATIONAL CASE-LAW
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EMPLOYMENT LAW NEWSLETTER
Decree-Law no. 106/2017 - Dirio da Repblica no. 166/2017, Series I, 29 August 2017 Establishes new rules for the collection, publication and dissemination of statistical information concerning work accidents.
These rules shall apply to work accidents insurance in the public sector; private, cooperative and social sectors; of the self-employed and in domestic service.
Work accidents shall henceforth be reported to insurers using a new officially approved form. This form will henceforth be sent in digital format. Micro-entreprises, the self-employed and domestic employees will still be able to send it in paper format.
In turn, insurers will henceforth be obliged to send the State work accidents data in digital format. This obligation is also applicable to data originating in micro-entreprises; the selfemployed, or domestic employees.
II EXTENSION ORDERS
Area of Activity Trade and Services Algarve
Order No. 262/2017 - Dirio da Repblica No. 169/2017, Series I, 1 September 2017 Establishes the extension of the amendments to the collective bargaining agreement between the Algarve Regional Trade and Services Association ACRAL and CESP Portuguese Trade Union of Trade, Office and Services Employees and others.
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Garments, Clothing and Fashion Industry
Order No. 265/2017 - Dirio da Repblica No. 171/2017, Series I, 5 September 2017 Establishes the extension of the amendments to the collective bargaining agreements between the National Association Of Garments, Clothing And Fashion Industries ANIVEC/APIV and FESETE - The Trade Union Federation of Textiles; Woollens, Garments; Footwear and Leathers Workers and between the said association and COFESINT The Industry; Energy, and Transport Trade Union Federation.
Metalwork, Metal Machinery and related Industries
Order No. 266/2017 - Dirio da Repblica No. 171/2017, Series I, 5 September 2017 Establishes the extension of the amendments to the collective bargaining agreement between the portuguese association of metalwork, metal machinery and related industries aimmap and sindel national industry and energy trade union.
Footwear and Leather Pieces and Articles Industry
Order No. 267/2017 - Dirio da Repblica No. 171/2017, Series I, 5 September 2017 Establishes the extension of the amendments to the collective bargaining agreements between the Portuguese Footwear, Leather and leather-substitute Pieces and Articles Industrial Association APICCAPS and FESETE - the Trade Union Federation of Textiles, Woollens, Garments, Footwear and Leathers Workers and between the said employers' association and
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COFESINT the Industry; Energy, and Transport Trade Union Federation.
Aveiro Region Industrial Association
Order No. 268/2017 - Dirio da Repblica No. 172/2017, Series I, 6 September 2017 Establishes the extension of the amendments to the collective bargaining agreements between The Aveiro Region Industrial Association, ACA and CESP s and another.
Order No. 277/2017 - Dirio da Repblica No. 180/2017, Series I, 18 September 2017 Establishes the extension of the amendments to the collective bargaining agreement between ANIL National Association of Woollens Manufacturing and another and FESETE - the Trade Union Federation of Textiles, Woollens, Garments; Footwear and Leathers Workers and between the said employers' association and COFESINT the Industry, Energy, and Transport Trade Union Federation.
Order No. 278/2017 - Dirio da Repblica No. 180/2017, Series I, 18 September 2017 Establishes the extension of the amendments to the collective bargaining agreements between ANIL National Dairies' Association and The Portuguese Trade Union of Dairy; Food, Farming, Office, Trade, Services, Road Transport, Metal Machinery, Metalwork, Civil Engineering and Wood Professionals and between the said employers' association and FESAHT - The Federation of Farming, Food, Beverages, Hospitality and Tourism Trade Unions and others.
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III NATIONAL CASE-LAW
Ruling of the vora Court of Appeal, March 16, 2017 Assignment of Contract Position - Sick leave
The employee brought proceedings against Employer X and Employer Y, which provide cleaning services, requesting that the Court declared her dismissal by one of them to be unlawful.
To this end, she alleged that she took up a job position as a cleaner in 2005, and that, whilst in the employ of Employer X, her place of employment was initially a nursery.
Furthermore, she alleged that she had been absent on sick leave from August 2011 through to 25 July 2014. In view of the impending medical discharge on that date, she contacted Employer X, who instructed her to report for duty on August 1, 2014 at Bocage Secondary School. She worked, however, for only one day, having then been placed on long-term sick leave again.
On January 1, 2015, Employer X happened to lose the contract at Bocage Secondary School to Employer Y, having informed the employee that her employment contract had been transferred, by dint of the applicable collective bargaining agreement.
According to the employee, neither of the employers accepted that she perform work duties for them, Employer X alleging that she had been assigned to Employer Y, who did not accept the assignment, alleging that the employee had not worked at Bocage Secondary School for over 120 days.
The Court of First Instance ruled that, since Employer Y had obtained the cleaning contract at Bocage Secondary School, the employee's employment contract had been assigned to it.
Employer Y lodged an appeal, requesting a ruling from the vora Court of Appeal on various issues, in particular, on the assignment or otherwise of the employment contract.
On the basis of Clause 17 of the collective bargaining agreement for contract cleaning companies, the Court of Appeal stated that, "there are three requirements for an employment contract to be assigned: (i) the loss of the workplace by the company to which the employee was attached; (ii) the assignment of the employee to the said workplace; (iii) the transfer of the workplace in question to another contract cleaning company."
Under the terms and effects of clause 17 (2) of the collective bargaining agreement for contract cleaning companies, "should a workplace be lost, the employer which has obtained the new service contract must retain all the employees that are normally assigned thereto."
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However, for this particular purpose, section 4, subparagraph a) of the said clause stipulates that, "employees who have been assigned to the workplace for no more than 120 days since shall not be considered as working habitually in that workplace."
The Labour Code stipulates that a temporary impediment for reasons pertaining to the employee that are not of his/her own free will and which extend beyond one month, in particular an illness, entails the suspension of his/her employment contract.
Hence, the Court found that "in order to assess the requirement of having worked at the said workplace for over 120 days, the period during which the employee was absent on sick leave, owing to protracted illness, and thus, with her employment contract suspended, must also be taken into consideration," that is to say, given that the employee had been assigned to Bocage Secondary School between January 1, 2013 and December 31, 2014, this had to be considered her workplace, even though she had not actually performed work duties there.
The Court found that all the requirements had been met for a contract assignment to have occurred, ruling that Employer Y had acquired the employee's employment contract through a transfer, by dint of having obtained the cleaning contract in question.
IV INTERNATIONAL CASE-LAW
Ruling by the European Court of Human Rights, September 5, 2017 Bogdan Mihai Barbulescu vs. Romania
The Grand Chamber of the European Court of Human Rights reversed a decision taken in January 2016 by handing down a ruling in favour of the Romanian employee, Bogdan Mihai Barbulescu, whereby his employer had infringed article 8 of the European Convention of Human Rights, which prescribes that "Everyone has the right to respect for his private and family life, his home and his correspondence."
On August 1, 2007, in the wake of disciplinary proceedings, the employee was dismissed for having sent and received messages using an instant messaging account created for professional use. The employee applied to the domestic court to have his dismissal annulled, on the grounds that his employer had breached his right to privacy by monitoring his personal e-mail messages.
His claim was rejected by the Romanian authorities; since, in the employee's view, the e-mail messages at stake were protected by Article 8 of the European Convention of Human Rights, he lodged an appeal to the European Court of Human Rights. On January 12, 2016, the Chamber ruled in favour of the Romanian Government on the grounds that it did not consider the said article to have been breached.
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The Grand Chamber has now overruled, having found that the Romanian domestic courts failed to strike an adequate balance between the rights and interests in this particular case.
The Grand Chamber of the Court ruled that "the domestic courts failed to determine, in particular, whether the applicant had received prior notice from his employer of the possibility that his communications (...) might be monitored; nor did they have regard either to the fact that he had not been informed of the nature or the extent of the monitoring, or to the degree of intrusion into his private life and correspondence."
In addition, according to the European Court of Human Rights, the domestic courts failed to determine the specific reasons justifying the introduction of the monitoring measures; if the employer could have used measures entailing less intrusion into the applicant's private life and correspondence; or whether the communications might have been accessed without his knowledge.
Having regard to all the above considerations, the European Court of Human Rights ruled that the domestic authorities did not afford adequate protection of the applicant's right to respect for his private and family life, home and correspondence and that there has therefore been a violation of Article 8 of the European Convention of Human Rights.
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