A AA A CUATRECASAS Employment Law Newsletter I Portugal August 2018 Contents
> Legislation > European Law > Extension Orders > Domestic Case-Law
A AA CUATRECASAS A I. Legislation Law no. 60/2018 · Diiirio da Repllblica no.160/2018, Series I, August 21, 2018 Adopting measures to promote equal pay for women and men for equal work or work of equal value Law no. 60/2018 was published on August 21, adopting measures to promote equal remuneration for women and men for equal work or work of equal value and amending various legal texts: Law no.10/2001 of May 10 establishing an annual report on equal opportunities between men and women; Law no.105/2009, of September 14, regulating and amending the Labour Code, and Decree-Law no. 76/2012, of March 26, ad opti ng the structure and remit of the Commission in Labour and for Equality Employment. The most significant measures in Law no. 60/2018 to promote wage equality are as follows: Employers must ensure that they have a transparent remuneration policy, based on an objective evaluation of tasks inherent to each position, common to men and women; Should allegation of pay discrimination arise, the employers bear the burden of proving that they have a transparent remuneration policy; Once the Authority for Working Conditions has received information concerning the company's business activities from employers, it shall notify the latter that they must submit a plan to assess wage differences within 120 days. Such plan shall be implemented over a 12-month period, at the end of which, employers must submit the results attained, setting out justified wage differences and the correction of unjustified wage differences; Dismissal or other penalties to allegedly punish labour infringements are presumed to be unlawful when applied within a year from the submission of request for an opinion on wage discrimination on the grounds of sex to the competent authorities for equal opportunities between men and women. II. European Law Directive EU 2018/957 of the European Parliament and of the Council of June 28, 2018 Amending Directive 96/71/EC concerning the posting of workers in the framework of a provision of services On July 9, Directive EU 2018/957 of the European Parliament and of the Council of June 28, 2018 amending Directive 96/71/EC concerning the posting of workers in the framework of the provision of services was published in the Official Journal of the European Union. [np oymc1tL, ,�,·,slcttc, 2
A AA CUATRECASAS A The overriding aim of this amendment is to bring the conditions of employment of posted workers into line with those enjoyed by workers in the host Member-State. Member-states must transpose this Directive into national law by no later than July 30, 2020. Ill. Extension Orders Sector Order Order no. 220/2018 - Diario da Repllblica no.144/2018, Series I, July 27, 2018 Establishes the extension of the amendments to the collective bargaining Hotel, Catering and Tourism agreement entered into between APHORT - Portuguese Hotel, Catering and Tourism Association and FESAHT - Portuguese Confederation of Farming, Food, Beverages, Catering and Tourism Trade Unions. Order no. 222/2018 - Diiirio da Repllblica no.149/2018, Series I, August 3, 2018 Establishes the extension of the amendments to the collective bargaining Import/Storage and Retail Trade of Chemical Products agreement entered into between NORQUIFAR - National Assocration of Importers/Wholesalers and Retailers of Chemical and Pharmaceutical Products and COFESINT ·Industry.Energy and Transports Trade Unions Federation and one other (chemical products). 3
A AA CUATRECASAS A Order no. 223/2018 - Diario da Repllblica no.149/2018, Series I, August 3, 2018 Establishes the extension of the amendments to the collective bargaining Meat Trade agreement entered into between the Nurucrpafities of Lisbon and Others Meat Traders Association and other employers' associations and the Southern Region Meat Trade and Industry Workers Trade Union. Diane Order no. 224/2018 - da Reptiblica n. 0 150/2018, Series I, August 6,2018 Establishes the extension of the amendments to the collective bargaining agreement entered into between Garments, Clothing and Fashion Industry ANIVEC/APIV - National Association of Garments, Clothing and Fashion Industries and COFESINT - Federation of Industry, Energy and Transport Trade Unions and one other. Order no. 231/2018 · Diilrio da Repllblica no.159/2018, Series I, August 20, 2018 Establishes the extension
of the Private Hospitals amendments to the collective bargaining agreement entered into between APHP - Portuguese Association of Private Hospitals and SEP- Portuguese Nurses Trade Union. 4
A AA CUATRECASAS A Order no. 234/2018 - Diario da Repllblica no.162/2018, Series I, August 23, 2018 Establishes the extension Portuguese Cooperative Wineries of the amendments to the collective bargaining agreement entered into between ADCP - Portuguese Association of Cooperative Wineries and SETAAB - National Trade Union of Farming, Fisheries, Tourism, Food and Beverages Sector and Similar Workers. IV. National Case-Law Ruling by the Court of Appeal of Porto, June 25, 2018 Work Accident - Working Hours - Workplace This case concerned an employee's claim for compensation for injuries suffered as the result of a work accident. The employee alleged that at approximately 7.30 a.m. on November 29, 2013, when working for his employer as a sales representative, he had an accident in which he slipped on the bathroom floor of the hotel room where he had stayed overnight and hit his back on the floor. On the previous day, he had attended the annual sales convention at the company headquarters and since he had to make several visits to clients in the Lisbon area on the following day, he had decided, with his employer's permission, to stay overnight in the city on November 28, 2013. As a result of the accident, the employee was admitted to the hospital and declared with an absolute and temporary working incapacity. The employer contested by claiming that the prerequisites for classification as a work accident had not been met, since the accident had not occurred in the employee's workplace, nor during the performance of his work duties. The case was dismissed by the Court of First Instance, leading the employee to lodge an appeal before the Court of Appeal of Porto. The Court of Appeal of Porto started by explaining that the issue at stake concerned whether or not the employer's authority and management extended to the employee's personal and private life actions, when travelling away from his domicile for occupational purposes. 5
A AA CUATRECASAS A The Court underscored the fact that for an accident to be classified as a work accident, the following criteria must be met: a) an accident occurs; b) it occurs during working hours and at the workplace c) the accident results either direct or indirectly in bodily injury, functional disorder or illness or death; d) that injuries caused by the accident lead to complete or partial loss of earning capacity. In this particular case, the Court found that the accident had not occurred in a place where work was being performed nor in a place where the employee had to go in order to perform his work duties. Furthermore, the accident had not occurred either during working hours, nor during contiguous activities. Conversely, the accident the employee suffered had occurred during a period of time at his disposal and for his private affairs. The Court added that even if the hotel room where he had stayed overnight could be considered an extension of his workplace, having a bath and taking care of personal hygiene could not be considered as preparation for the occupation of sales representative. The employee had an accident in the bathroom, where he was not under his employer's orders or instructions. In view of the foregoing, the Court of Appeal of Porto rejected the appeal and upheld the previous ruling, by not considering the employee's accident as a work accident. Ruling by the Supreme Court of Justice, July 4, 2018 Termination of Employment Contract by the Employee - Lawful grounds - Withdrawal of a company car The ruling under review concerned whether or not the withdrawal of a company car, provided by the employer for the employee's personal and occupational use, meets the requirements for bemg considered lawful grounds for the termination of the employment contract by said employee. The employee was recruited by the employer in 1998, to work in telecommunications. In 2005, the employer allocated€ 21,000 for the employee to choose a vehicle for his personal use, which he did. The employee was authorised to use the vehicle without limitations, outside working hours, in particular, during weekends, national holidays and annual leave, as well as on work days, outside working hours. All expenses arising from the use and maintenance of vehicle, including motorway and bridge tolls and the employee's personal journeys, were paid by the employer, with the exception of fuel for personal journeys. In 2009, the employer allocated€ 25,000 for the employee to choose a new vehicle. The employee used the new vehicle under the same terms as he had used the previous one. 6
A AA CUATRECASAS A As of 2012, in addition to the expenses the employer was already bearing, he attributed a maximum threshold of€ 1,500/year to the employee for fuel and tolls for non-professional usages. In 2016, the employer sent a written communication under the heading of "Termination Benefits" to the employee, informing him that the allocation and use of a vehicle would be terminated, along with the threshold amounts for fuel and tolls, and a parking place, as part of the company's change in policy regarding the provision of vehicles. Faced with this situation, the employee decided to terminate his employment contract, claiming lawful grounds for doing so. He thus alleged that the employee's behaviour had deprived him of a significant proportion of his remuneration, equivalent to approximately 50%. The Court of First Instance ruled that the employee's termination of the employment contract was lawful, in view of the employer's intentional failure to pay remuneration promptly, and therefore ordered the employer to pay a compensation and salary claims. The employer contested the decision by lodging an appeal before the Court of Appeal of Porto, which overturned the ruling regarding the existence of lawful grounds for the employee to terminate the contract. The decision displeased the employee who appealed it before the Supreme Court of Justice. Firstly, the Supreme Court explained that notwithstanding the employer had undoubtedly acted unlawfully violating the employee's right to remuneration, the issue at stake was whether or not it had become impossible for the employee to maintain his working relationship. Ordinarily, for an employee to lawfully terminate his contract, the employer's actions must produce such harmful effects, either direct or indirectly, as to make it impossible for the employee to maintain his working relationship. Thus, the Supreme Court ruled that the employee had not proven the impact of the withdrawal of use of vehicle on his overall remuneration, hence not having enough evidence to state that it was untenable for the employee to remain performing his duties. Lastly, the Supreme Court added that when faced with a reduction in payable remuneration, the employee had opted to terminate his contract forthwith, without contacting his employer in order to recover the lost remuneration or to find another remedy for the breach of his rights, as bound to do by the mutual good faith duty. 7
A AA CUATRECASAS A In view of the foregoing, the Supreme Court of Justice found that the case for lawful termination of the employment contract by the employee had not been proven, and therefore upheld the decision under appeal. Contact Cuatrecasas, Gom;alves Pereira & Associados, Sociedade de Advogados, SP, RL Socicdadc profisstonal de rcsponsabikdadc lirrutada Lisboa Praca Marques de Pombal. 2 (c 1 8°) 1250-160 Lisboa Portugal T cl (351) 21355 3800 Fax (351) 21 353 2362 I I I cuatrecasasportugal@cuatrecasas.com www.cuatrecasas.com Porto Avcnida da Boavista. 3265 5.1 4100-137 Porto Portugal T cl. (351) 22 616 6920 Fax (351) 22 616 6949 cuatrccasasporto@cuatrccasas.com www.cuacrccasas.com I I I For additional information on the contents of this document, please contact Cuatrecasas. © Cuatrecasas, Gonçalves Pereira & Associados, Sociedade de Advogados, SP, RL 2018. The total or partial reproduction is forbidden. All rights reserved. This communication is a selection of the news and legislation considered to be relevant on reference topics and it is not intended to be an exhaustive compilation of all the news of the reporting period. The information contained on this page does not constitute legal advice in any field of our professional activity.
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