Portugal transposed into national law the European Directive regarding posting of workers in the framework of the provision of services

Important amendments were introduced in regards to the posting of workers in Portuguese territory and to the posting of workers to another Member-State by service providers established in Portugal.

As such, the Decree Law 101-E/2020, of 7th December, amended the Law 29/2017, of 30th May, namely in the following aspects:

1. Working conditions of posted workers

Regardless of the applicable law to the employment relationship, the legal protection of posted workers are increased, considering all that is set forth in the law and collective bargaining agreements which have been declared universally applicable, concerning the following:

• The conditions of workers’ accommodation where provided by the employer to workers away from their regular place of work;

• Allowances of reimbursement of expenditure to cover travel, board and lodging expenses for workers away from home for professional reasons.

These employment conditions are also applicable to workers hired by a company established in Portuguese territory posted in another Member State, without excluding the possibility of applying to them a more favourable rule, according to the contract or the applicable law.

The violation of these conditions represents a serious administrative offence.

2. Posting of workers by temporary employment agencies

• Temporary employment agencies (TEA) are obliged to comply with the applicable legislation in case of posting of workers to other Member-State, being considered that the worker is posted by the TEA.

• To the employees posted by temporary employment agencies shall be applicable the same work conditions applicable to the employees posted by temporary employment agencies established in Portugal.

• The user is now obliged to inform the temporary agency of the applicable working conditions, such as remuneration.

• Moreover, if the user posts the temporary worker to another Member-State, it shall be required to inform the temporary agency which hired out the worker in due time before the work starts. 

• If the user does not inform the temporary agency of the posting, the temporary worker shall be considered as being posted in the Member-State in which they are working by the temporary agency with which they have an employment contract.

3. Long-term posting

a) Where the effective duration of a posting exceeds 12 months, posted workers are entitled to all legal conditions set forth by law, regulation or administrative provision, as well as by collective bargaining agreements or arbitration awards which have been declared universally, applicable in the Member State where the work is carried out, with exception of:

• Procedures, formalities and conditions of the conclusion and termination of the employment contract, including non-competition clauses;

• Supplementary occupational retirement pension schemes.

b) The posting may be extended through a substantiated communication to the Working Conditions Authority (“ACT”), which states the justifications for the extending, in which case the working conditions shall be applicable after 18 months of effective duration.

c) When the duration of the posting is less to 12 months, the referred communication (for the posting extension) must be sent with a minimum notice of 30 days before the expiration of said period.

d) In order to determine the duration of the posting, all periods of posting corresponding to the replacement of posted workers by other posted workers performing the same task at the same place shall be considered.

4. Enforcement of control and monitoring of postings

a) The authority responsible for the validation  of the posting in Portuguese territory should consider the following elements which define the work and the worker’s situation:

• The conditions of workers’ accommodation where provided by the employer to workers away from their regular place of work;

• Allowances specific to the posting are considered to be part of the worker’s remuneration, unless they are paid in reimbursement of expenditure actually incurred on account of the posting, such as expenditure on travel, board and lodging.

b) If the competent authority assess that a company created, abusively or in violation of the rules, the impression that a worker is under the posting regime, said worker shall not be subjected to working conditions less favourable than those applicable to posted workers.

c) The Decree-Law increases the amount of information regarding the posted workers conditions that shall be published in the official national internet website, including the reference to all the remuneration’s elements and the additional working conditions applicable to posting lasting more than 12 months.

5. Development of the concept of remuneration

• The minimum wage applicable in the Member-State where the work is carried out is one of the guarantees provided to posted workers, regardless of the length of the posting.

• To that end, it is made clear that the concept of “remuneration” is determined by the law and/or collective bargaining agreements which have been declared universally applicable.

• Allowances specific to the posting are considered to be part of the worker’s remuneration, unless they are paid in reimbursement of expenditure actually incurred on account of the posting, such as expenditure on travel, board and lodging. For this purpose, these allowances shall be presumed to be paid as reimbursement of expenditure, unless the legal provisions applicable to the employment relationship state otherwise, indicating which constituent elements of remuneration are paid as reimbursement of expenditure.