I EMPLOYMENT OBLIGATIONS

Payment of the Christmas subsidy

The Christmas subsidy must be paid by no later than 15 December.

Whenever employees have chosen payment of this subsidy in twelve parts, their employer must pay only 50% of the Christmas subsidy by the said date, in view of the fact that the remaining 50% will have been paid over the course of the year.

Closure for holidays

Should employers wish to close their company in 2017 on a working day which falls between a statutory holiday and a weekly rest day (hence, if a statutory holiday falls on a Tuesday or Thursday), they must inform employees of any such closures during the following year by no later than 15 December.

II EXTENSION ORDERS

Area of Activity Order
Industry and trade of confectionery products and fruit preserve (office workers)

Order no. 286/2016 - Diário da República no. 214/2016, Series I of 2016-11-08

Establishes the extension of the working conditions arising from the collective bargaining agreement entered into by ANCIPA - National Association of Food Product Traders and Manufacturers and FETESE - Industry and Services Trade Union Federation. 

III NATIONAL CASE LAW

Ruling by Coimbra Court of Appeal, of 18 October 2016 

Outstanding earnings – Special claims on immovable property – Immovable property – Workplace

This ruling raises the issue as to how Article 333 (1), paragraph b) of the Labor Code should be interpreted, specifically the segment which guarantees employees “special claims on the employer's immovable property in which the employee performs his work” as a means of securing his outstanding earnings, in particular with regard to how the concept of “workplace” should be interpreted.

Initially, the Coimbra Court of Appeal (CCA) considered the concept of “workplace” defined in jurisprudence as, “the place where employees habitually or permanently perform their duties”. They rejected it, however, on the grounds that if used to interpret article 333 of the Labor Code, it would result in a large number of employees' outstanding earnings not being honored and could even entail infringements of the principle of equality. An employee's occupation, for example, might not be tailored to a single or habitual workplace (which is the case of drivers) or may involve different places of work according to the nature of the work performed (which is what happens with building workers), resulting in such workers never being able to exercise special claims on immovable property. Furthermore and taking the same examples, the said drivers and building workers would be at a disadvantage compared to office workers who always perform their duties in the same property belonging to their employer and who would thus be in a position to exercise special claims over the said property as collateral for their outstanding earnings. Nevertheless, the aforementioned categories of workers would not enjoy any guarantees, rendering their claims mere ordinary claims, despite the fact that they arise from the same legal relationship. 

The CCA ruled that Article 333 (1) paragraph b) of the Labor Code should not be interpreted literally, but that its interpretation should be broad and that special claims for outstanding earnings encompass all the employer's immovable assets habitually used for carrying on his business activity and not merely the building in which the employee actually works. 

Since in this particular case, the employer had been declared insolvent and had rented out some of the properties in which he pursued his business activity some seven years prior to the declaration of insolvency, the CCA ruled that the special claims for outstanding earnings could not be applied to the said property, as it judged that “the property must be assigned to the business activity and continued to be used for such at the time when the declaration of insolvency is made.” 

Ruling by the Évora Court of Appeal, of 20 October 2016 

Administrative offence – Liability – Employee 

The case under review concerns charges brought against an employee of a Portuguese employer who worked as the driver of a heavy goods vehicle, whilst he was driving in France. A fine (of €12,000.00) was imposed because the employee had breached EU rules concerning the recording of driving times, by tampering with the tachograph charts, in addition to the vehicle being impounded until the fine was paid. Since the driver did not have the financial means to make the payment, and in order to avoid the vehicle being impounded, he requested that his employer pay the fine, with the two parties agreeing to reimbursement by instalments.

As the employment contract between the plaintiff and defendant terminated prior to the latter having made a single reimbursement, the employer brought proceedings against the employee in an attempt to obtain the sum owing. The Court of First Instance ruled in the plaintiff's favor and ordered the employee to pay the sum in question.

At the appeal stage, the Évora Court of Appeal (ECA) ruled that road haulage companies are liable for infringements committed by drivers, since this is the rule established in both European regulations and in the provisions of Portuguese domestic law. In this specific case, the Court ruled that there were no grounds for invoking the exception of shifting liability on to the employee, because the employer did not prove that it had organized the work in such a way as to enable the driver to comply with applicable rules (despite having proved that it had provided the driver with a training course in “tachographs and drivers' legal obligations” through an accredited entity, and which the driver had obtained a “clear pass” in.)

To conclude, the ECA sought to justify its legal decision, which it did on the grounds of needing to protect the employee by establishing the premise that the infringement occurred as a result of the employer not having adopted the necessary measures to prevent the offence from being committed, having, nevertheless, allowed the employer to prove that it had organized the assignment in such a way as to prevent the said occurrence, thereby exempting itself from liability.