NEWSLETTER I EMPLOYMENT LAW
CONTENTS EMPLOYMENT LAW NEWSLETTER I NOVEMBER, 2017 I EXTENSION ORDERS II NATIONAL CASE-LAW III EUROPEAN CASE-LAW
2 9 10
EMPLOYMENT LAW NEWSLETTER I EXTENSION ORDERS
Area of activity
Order
Order no. 309/2017 - Dirio da Repblica no. 204/2017, Series I, October 23, 2017
Paper and Cardboard Industry
Establishes the extension of the collective bargaining agreement and its amendments between ANIPC - National Association of Paper and Cardboard Industries and FIEQUIMETAL Inter-Trade Union Federation of Metal-working; Chemical; Electrical; Pharmaceutical; Cellulose; Paper; Graphic; Print; Energy, and Mining Industries.
Order no. 310/2017 - Dirio da Repblica no. 204/2017, Series I, October 23, 2017
Paper and Cardboard Manufacturing
Establishes the extension of the amendments to the collective bargaining agreement between FAPEL Portuguese Association of Paper and Cardboard Manufacturers and COFESINT - the Industry; Energy, and Transport Trade Union Federation and another and between the said association and FETESE - Industry and Services Trade Unions Federation.
Order no. 311/2017 - Dirio da Repblica no. 204/2017, Series I, October 23, 2017
Fish Canning Industry
Establishes the extension of the amendments to the collective bargaining agreement between ANICP National Association of Fish Canning Industries and FESAHT - the Federation of Farming, Food,
WWW.CUATRECASAS.COM
NEWSLETTER I EMPLOYMENT LAW 2/12
Distribution of Foodstuffs
Pharmaceutical Industry
Hotel, Catering and Similar Chemical and Pharmaceutical
Products Industry
Beverages, Hospitality and Tourism Trade Unions and others.
Order no. 312/2017 - Dirio da Repblica no. 204/2017, Series I, October 23, 2017
Establishes the extension of the amendments to the collective bargaining agreement between ADIPA the Foodstuffs Distributors' Association and SITESE - Services, Trade, Catering and Tourism Workers and Technicians Trade Union (wholesale trade).
Order no. 313/2017 - Dirio da Repblica no. 204/2017, Series I, October 23, 2017
Establishes the extension of the amendments to the collective bargaining agreement between APIFARMA Portuguese Pharmaceutical Industry Association and COFESINT - the Industry; Energy, and Transport Trade Union Federation and one other.
Order no. 316/2017 - Dirio da Repblica no. 205/2017, Series I, October 24, 2017
Establishes the extension of the collective bargaining agreement between AHRESP (Portuguese Association of Hotel, Catering and Similar) and FESAHT - the Federation of Farming, Food, Beverages, Hospitality and Tourism Trade Unions (Accommodation).
Order no. 317/2017 - Dirio da Repblica no. 205/2017, Series I, October 24, 2017
Establishes the extension of the amendments to the collective bargaining
WWW.CUATRECASAS.COM
NEWSLETTER I EMPLOYMENT LAW 3/12
Hotel, Catering and Similar Metal Industry
Vehicle Inspection
agreement between GROQUIFAR Chemical and Pharmaceutical Products Wholesalers' Association and FEPCES Portuguese Federation of Business, Offices and Services Trade Unions and one other and between the said employers' association and COFESINT - the Industry; Energy, and Transport Trade Union Federation and one other (wholesale trade of chemical products for industry or agriculture).
Order no. 318/2017 - Dirio da Repblica no. 206/2017, Series I, October 25, 2017
Establishes the extension of the collective
bargaining agreement between AHRESP
(Portuguese Association of Hotel, Catering
and Similar) and SITESE - Services, Trade,
Catering and Tourism Workers and
Technicians
Trade
Union
(Accommodation).
Order no. 319/2017 - Dirio da Repblica no. 206/2017, Series I, October 25, 2017
Establishes the extension of the collective bargaining agreement between FENAME National Metal Federation and SITESE Services, Trade, Catering and Tourism Workers and Technicians Trade Union and others.
Order no. 320/2017 - Dirio da Repblica no. 206/2017, Series I, October 25, 2017
Establishes the extension of the collective bargaining agreement between ANCIA National Association of Vehicle Inspection Centres and FETESE - Industry and Services Trade Unions Federation.
WWW.CUATRECASAS.COM
NEWSLETTER I EMPLOYMENT LAW 4/12
Order no. 328/2017 - Dirio da Repblica no. 209/2017, Series I, October 30, 2017
Traders and Entrepreneurs of Oeiras and Amadora Municipalities
Establishes the extension of the amendments to the collective bargaining agreement between the Oeiras and Amadora Municipalities Trade and Business Association and others and SITESE Services, Trade, Catering and Tourism Workers and Technicians Trade Union.
Order no. 329/2017 - Dirio da Repblica no. 209/2017, Series I, October 30, 2017
Viana do Castelo Business Community
Establishes the extension of the amendments to the collective bargaining agreement between AEVC - Viana do Castelo Business Association and others and CESP - Portuguese Trade Union of Trade, Offices and Services Workers.
Order no. 332/2017 - Dirio da Repblica no. 212/2017, Series I, November 3, 2017
Construction, Public Works and Services
Establishes the extension of the collective bargaining agreement between AECOPS Association of Building and Public Works and Services Companies and others and FETESE The Industry and Services Trade Union Federation and others.
Order no. 333/2017 - Dirio da Repblica no. 212/2017, Series I, November 3, 2017
Pharmaceutical Industry
Establishes the extension of the amendments to the collective bargaining agreement between APIFARMA Portuguese Pharmaceutical Industry Association and SITESE - Services, Trade,
WWW.CUATRECASAS.COM
NEWSLETTER I EMPLOYMENT LAW 5/12
Tanning Industry Millinery Sector
Cork Industry Hotel, Catering and similar
Catering and Tourism Workers and Technicians Trade Union.
Order no. 334/2017 - Dirio da Repblica no. 213/2017, Series I, November 6, 2017
Establishes the extension of the collective bargaining agreement between Portuguese Tanning Industry Association and FESETE Portuguese Trade Union Federation of Textiles; Woollens, Garments; Footwear and Leathers Workers.
Order no. 337/2017 - Dirio da Repblica no. 214/2017, Series I, November 7, 2017
Establishes the extension of the amendments to the collective bargaining agreement between the Portuguese Milliners' Association and FESETE Portuguese Trade Union Federation of Textiles; Woollens, Garments; Footwear and Leathers Workers.
Order no. 338/2017 - Dirio da Repblica no. 214/2017, Series I, November 7, 2017
Establishes the extension of the amendments to the collective bargaining agreement between APCOR- Portuguese Cork Association and SINDCES/UGT Trade, Offices and Services Trade Union (office staff).
Order no. 339/2017 - Dirio da Repblica no. 215/2017, Series I, November 8, 2017
Establishes the extension of the amendments to the collective bargaining agreement between AHRESP (Portuguese Association of Hotel, Catering and Similar)
WWW.CUATRECASAS.COM
NEWSLETTER I EMPLOYMENT LAW 6/12
and FESAHT - the Federation of Farming, Food, Beverages, Hospitality and Tourism Trade Unions (catering and beverages).
Order no. 341/2017 - Dirio da Repblica no. 216/2017, Series I, November 9, 2017
Hotel Sector and similar
Establishes the extension of the amendments to the collective bargaining agreement between AIHSA Algarve Hotel Sector Association and FESAHT - the Federation of Farming, Food, Beverages, Hospitality and Tourism Trade Unions and others.
Order no. 345/2017 - Dirio da Repblica no. 218/2017, Series I, November 13, 2017
Hospitals Common Service Provider
Establishes the extension of the amendments to the collective bargaining agreement between SUCH - Hospitals Common Service Provider and FESAHT Federation of Farming, Food, Beverages, Hospitality and Tourism Trade Unions and others.
Order no. 346/2017 - Dirio da Repblica no. 218/2017, Series I, November 13, 2017
Ceramics and Glassware Industry Cork Industry
Establishes the extension of the amendments to the collective bargaining agreement between APICER-Portuguese Ceramics and Glassware Industry Association and SINTICAVS National Trade Union of Ceramics, Cements, Abrasives, Glass, Similar, Civil Engineering and Public Works (ceramics industry factory staff).
Order no. 354/2017 - Dirio da Repblica no. 221/2017, Series I, November 16, 2017
WWW.CUATRECASAS.COM
NEWSLETTER I EMPLOYMENT LAW 7/12
Establishes the extension of the amendments to the collective bargaining agreement between APCOR- Portuguese Cork Association and FEVICCOM Portuguese Construction, Ceramics and Glass Trade Unions Federation and other (factory staff).
Order no. 355/2017 - Dirio da Repblica no. 221/2017, Series I, November 16, 2017
Airlines
Establishes the extension of the collective bargaining agreement between RENA Association of Airlines in Portugal and SITAVA Aviation and Airport Workers Trade Union and another.
Order no. 356/2017 - Dirio da Repblica no. 221/2017, Series I, November 16, 2017
Security Companies
Establishes the extension of the collective bargaining agreement between AES Association of Security Companies and STAD Concierge, Surveillance, Cleaning, Domestic Workers and Other Activities Trade Union.
Order no. 357/2017 - Dirio da Repblica no. 221/2017, Series I, November 16, 2017
Security Companies
Establishes the extension of the collective bargaining agreement between AES Association of Security Companies and FETESE - The Industry and Services Trade Union Federation and one other.
Aveiro Regional Business Community
Order no. 358/2017 - Dirio da Repblica no. 222/2017, Series I, November 17, 2017
Establishes the extension of the amendments to the collective bargaining
WWW.CUATRECASAS.COM
NEWSLETTER I EMPLOYMENT LAW 8/12
agreement between ACA - Aveiro Regional Business Association and CESP Portuguese Trade Union of Trade, Offices and Services Workers.
II NATIONAL CASE-LAW
Ruling by the Guimares Court of Appeal, September 21, 2017 Work Accident Fall in the hardstand
The employee brought special proceedings following a work accident against the insurance company, claiming the lifelong annuity set by a Medical Board as compensation for periods of temporary disability; travel expenses and corresponding interest for late payment.
To support her claim, she alleged that on March 27, 2014, at 1.15 p.m., after having had lunch and as she was making her way from her mother's house to her place of work, she had an accident in the hardstand belonging to the house.
She further alleged that, during the weeks in which she worked the afternoon shift, she habitually had lunch at her mother's house, located at approximately 15 km from her workplace, and that she suffered injuries as a result of the accident that left her with a temporary disability and a Permanent Partial Incapacity.
For its part, the insurer acknowledged the existence of an insurance contract, but held that the employee's accident did not fall within the scope of a work accident, since in its view, the accident occurred before the employee had begun her journey to work. Moreover, it had occurred in a place of private access and use and was therefore ineligible for reparation.
Notwithstanding, the Court of First Instance ruled partly in favour of the plaintiff, since in its opinion, the accident that occurred in the house's hardstand should be considered an in itinere work accident.
The insurer contested and appealed the decision before the Guimares Court of Appeal, seeking a ruling on a number of points, including whether or not the incident in the house's hardstand should be classified as an in itinere work accident.
Previous labour laws provided that work accidents on the journey to and from the workplace encompassed those accidents occurring on the route habitually used and during the uninterrupted period generally taken by employees between their usual or occasional residence, from the front door of their house leading to the landing and stairs of an apartment block or the public highway, to the facilities constituting their place of work.
WWW.CUATRECASAS.COM
NEWSLETTER I EMPLOYMENT LAW 9/12
The law currently in force, however, no longer makes any reference to the fro nt door of a house leading to the landing and stairs of an apartment block or the public highway, thereby giving rise to the issue of where exactly the habitually used route begins, and the period of time generally taken to travel it, for the purposes of determining whether an accident falls within the notion of in itinere accidents.
The Court of Appeal ruled that legal protection covers the route taken by employees when they leave the door of their usual or occasional place of residence for the purposes o f travelling to their place of employment and the return route from there to the said place of residence, once they finish their service.
Hence, the Court of Appeal upheld the ruling by the Court of First Instance by considering the accident under review an in itinere work accident, since in its view, the grounds for establishing an accident as having occurred in itinere are met as soon as employees cross the threshold of their front door and enter an area outside their home, albeit in an apartment block with areas shared with other residents or homeowners, or in a singlefamily home. An in itinere accident can occur before reaching the public highway for the purposes of taking the route used to travel to the place of employment.
III EUROPEAN CASE-LAW
Ruling by the European Court of Justice (Tenth Section), October 19, 2017 Transfer of undertakings or businesses - Provision of security guard services
In the case under review, seventeen employees brought proceedings in the Court of First Instance against "X" and "Y", requesting that "Y" or, in the alternative, "X" be ordered to acknowledge that they are part of its staff and, thus, to pay their salaries owing plus interest for late payment, or, for three of them, compensation for wrongful dismissal instead of reinstatement.
They based their claim on "Z" having entered into a contract for provision of services with "X", pursuant to which, as employees of "X", they performed security guard duties in "Z"'s facilities in Ponta Delgada, being responsible, inter alia, for monitoring the entry and exit of persons and goods, by means of video surveillance devices.
They further alleged that, in January 2013, "Z" launched a call for tenders for the provision of security guard and preventive security services in its facilities in Ponta Delgada, with the contract for that public tender having been awarded to "Y".
Moreover, they maintained that "X" informed them in writing that, following the award of the contract, their employment contracts would, from that date, be transferred to "Y", who, in turn, informed them that they were not part of its staff and that "X" remained their employer.
WWW.CUATRECASAS.COM
NEWSLETTER I EMPLOYMENT LAW 10/12
The Court of First Instance upheld the actions, since it held that there had been a transfer of a business between the two companies and that the employment contracts of the former employees of "X" had been transferred to "Y". As a result, it classified their dismissal by "Y" as `wrongful' and ordered that company to reinstate the majority of the persons concerned and pay them various salary claims and compensation.
"Y" contested and brought an appeal against that judgment before the Lisbon Court of Appeal, which upheld the judgment given at first instance.
"Y" consequently brought an exceptional appeal on a point of law before the Supreme Court of Justice. That court had doubts as to whether the replacement of "X" by "Y" for the provision of security guard services in the facilities of "Z", following the award to "Y" of a service contract, falls within the notion of a `transfer of an undertaking or business' within the meaning of Directive 2001/23.
In those circumstances, the Supreme Court decided to stay the proceedings and to refer the following questions to the European Court of Justice for a preliminary ruling: (i) Does the situation in the present case amount to a transfer of an undertaking or business and does that situation amount to a transfer of an economic entity? (ii) Is the situation in the present case merely one in which a competing undertaking succeeds another? And (iii) Is a clause of a collective agreement contrary to EU law in that it provides that: "the loss of a customer by an operator following the award of a service contract to another operator shall not fall within the concept of a transfer of an undertaking or business"?
In this context, the European Court of Justice ruled that, in the meaning of Directive 2001/23, when the activity is based essentially on equipment, the fact that the former employees of an undertaking are not taken over by the new contractor to perform that activity is not sufficient to preclude the existence of a transfer of an economic entity which retains its identity.
Moreover, the Court concluded that the Supreme Court of Justice will also have to determine whether "X" had made equipment or tangible or intangible assets directly or indirectly available to "Y" for the purposes of the performing the security guard services activity at the facilities at issue, and if such assets had been made available to "X" and "Y" by "Z".
Accordingly, the European Court of Justice ruled that, within the meaning given by the Directive, where a contracting entity has terminated the contract concluded with one undertaking for the provision of security guard services at its facilities, then concluded a new contract for the supply of those services with another undertaking, which refuses to take on the employees of the first undertaking, that situation falls within the concept of a
WWW.CUATRECASAS.COM
NEWSLETTER I EMPLOYMENT LAW 11/12
transfer of an undertaking or business, when the equipment essential to the performance of those services has been taken over by the second undertaking.
Lastly, the said Court ruled that the meaning of the EU Directive precludes a national provision which provides that "the loss of a customer by an operator following the award of a service contract to another operator does not fall within the concept of a `transfer of an undertaking or business' ".
CONTACT
CUATRECASAS, GONALVES PEREIRA & ASSOCIADOS SOCIEDADE DE ADVOGADOS, SP, RL Sociedade Profissional de Responsabilidade Limitada
LISBON Praa Marqus de Pombal, 2 (e 1-8) I 1250-160 Lisbon I Portugal Tel. (351) 21 355 3800 I Fax (351) 21 353 2362 [email protected] I www.cuatrecasas.com
PORTO Avenida da Boavista, 3265 - 5.1 I 4100-137 Porto I Portugal Tel. (351) 22 616 6920 I Fax (351) 22 616 6949 [email protected] I www.cuatrecasas.com
This Newsletter was prepared by Cuatrecasas, Gonalves Pereira & Associados, RL for information purposes only and should not be understood as a form of advertising. The information provided and the opinions expressed herein are of a general nature and should not, under any circumstances, be a replacement for adequate legal advice for the resolution of specific cases. Therefore, Cuatrecasas, Gonalves Pereira & Associados, RL is not liable for any possible damages caused by its use. Access to the information provided in this Newsletter does not imply the formation of a lawyer-client relationship or of any other sort of legal relationship. This Newsletter is published free of charge and may not be copied or distributed without formal prior consent. The personal data you provide us, including your email address, will be treated in accordance with national and European data protection legislation. If you do not wish to continue receiving this Newsletter, please send an e -mail to [email protected]
WWW.CUATRECASAS.COM
NEWSLETTER I EMPLOYMENT LAW 12/12
