Judgment of the Court of Appeal of Porto of 2013-11-04
Motivation of fixed-term employment contract
In the judgment in question, the Court of Appeal of Porto was requested to rule, among other questions, on the validity of the term imposed on an employment contract.
Based on article 141(1)(e) of the Labour Code, according to which the fixed-term employment contract must contain the justification for the imposition of such term, the Court concluded that, in the case under consideration, the facts that justified the hiring had not been sufficiently specified, considering that the mere reference to “exceptional increase of sales and customers, due to the increase of promotional sales of a number of products” does not allow to accurately and concretely outline those justifying facts.
On the other hand, still with regard to the imposition of a term, the Court considered that the contract did not establish a relation between the justifying facts and the term for which the contract had been entered into and that article 141(3) of the Labour Code was not complied with, for which reason the contract under consideration should be considered a permanent employment contract.
Judgment of the Constitutional Court No. 794/2013 of 2013-11-21
Increase of the normal working period of employees in public functions
In this judgment, the Constitutional Court examined the possible unconstitutionality of article 2 of Law No. 68/2013 of 29 August, providing for the increase of the normal working period of employees in public functions to eight hours a day and forty hours a week and, consequently, of articles 3, 4 and 11(1) of the same Law, inasmuch as these introduce the amendments required for the adjustment made by number 2 referred to above.
The Court clarified that the normal reference working period referred to in article 2(1) of Law No. 68/2013 corresponds to a maximum working period, which may be reduced both by special new law and by collective bargaining agreement enacted after the former Law, and is, to that extent, very similar to the legal framework provided for in the Labour Code for employees in the private sector.
With regard to the alleged breach of the obligation to establish a maximum limit for the normal working period, the Constitutional Court concluded that, despite such maximum limit not being absolute – inasmuch as the establishment of a maximum working period does not preclude the establishment of longer working periods in specific legislation –, the legislator did not fail to establish a maximum number of working hours, which is the faculty of the free decision making power of the Public Administration employer.
The Court further held that the legislation opposed does not amount to a violation of the prohibition of social regression, inasmuch as the change for the worse of the provisions relating to working time in the public service, merely reflects the autonomy of the legislative function and the freedom of action of the legislator, which would be destroyed, should the “irreversibility of the level of achievement of economic and social rights carried out by the ordinary legislator” be admitted.
Based on previous, repeated case law, the Constitutional Court observed, with regard to the possible breach of the principle of trust, that in the case under consideration there are public interests that are perfectly identified and greatly relevant, the protection of which should prevail over that principle.
Also, the argument of the violation of the principle of equality and proportionality was not accepted by the Court, which considered that, since in this case there are no differences in treatment – introduced by the legislation under consideration – between the employees of the private sector and of the civil service on the matter of normal working period, those principles should be deemed to have been observed.
Finally, with regard to the alleged breach of the right to remuneration, the Constitutional Court, although observing that the measure in question will indeed imply a reduction of the remuneration value per hour, implying a reduction of the amounts received as overtime work, held that such reduction is not relevant for the decision of unconstitutionality, since, according to consistent case law, the principle of the non-reducibility of pay does not apply to overtime work.
Accordingly, the Constitutional Court decided not to hold unconstitutional the provisions of Article 2 together with Article 10, 3, 4 and 11 of Law No. 68/2013.