New rules regarding posting of workers
Law no. 29/2017, of May 30th, was published, transforming into national law the Directive 2014/67/EU of the European Parliament and of the Council, of May 15th, 2014, concerning the posting of workers in the framework of the provision of services.
Law no. 29/2017, of May 30th, covers the following cases:
- Posting of workers in Portuguese territory;
- Posting of workers to another Member State by a service provider based in Portugal.
The following aspects of this new Law can be highlighted:
1. Competent authority in Portugal
The “Autoridade para as Condições do Trabalho” (“ACT”) is the competent authority to verify the situation of an employee temporarily posted in Portuguese territory who renders his activity under the conditions foreseen in paragraphs 1 and 2 of article 6 of the Portuguese Labour Code.
As the Portuguese competent authority, ACT is responsible to execute notification requests or billing requests regarding posting of workers in Portuguese territory by a service provider based in another Member State, as well as posting of workers in another Member State by a service provider based in Portugal.
2. Evidence of the existence of posting of workers in Portuguese territory
In order to check if a posting of workers in Portuguese territory exists, the following evidences shall be considered:
a) Work is rendered for a limited period;
b) Work is rendered from the date the posting of worker begins onwards;
c) The employee does not usually render his work in Portuguese territory;
d) The posted worker returns, or should return to his activity in the original Member State, after the work is concluded or the services are provided;
e) Traveling, meal and lodging costs are bared or reimbursed by the employer that posts the worker and, if applicable, the way such costs are bared and the reimbursement proceeding used;
f) The employee’s activity nature;
g) Former posts of the same or other worker to the same work post.
3. Obligations of the entity that posts workers
In order to ensure the compliance with the obligations established in the present Law, concerning the posting of workers in Portuguese territory, the service provider is obliged to:
- Submit a statement, before the services start to be provided, which shall include:
• Identification of the service provider;
• Number and identification of the workers to be posted;
• Identification of a person of contact of the services provider;
• Expected duration and expected dates of beginning and end of the post of workers;
• Workplace or workplaces addresses;
• Nature of the services that justify the posting of workers.
- Keep hard copies or in electronic format of (these documents may be requested by the competent authorities until one year after the posting of workers terminates):
• Employment contract, or written document with relevant aspects of the employment contract;
• Pay slips;
• Worktime records, indicating the beginning and end, as well as the duration of the daily work period;
• Evidence of retribution payments.
- Designate a person of contact with the competent authorities responsible to send and receive documents and informations, as well as, if that is the case, deal with social partners regarding collective negotiations.
4. Posted workers legal protection
With regard to the protection of the rights of posted workers, the present Law provides that, in the event of non-compliance with the conditions of employment foreseen in Portuguese Labor Code, an employee posted in Portuguese territory is entitled to:
• Pursue a claim against the employer to the competent authority; and
• File a judicial claim regarding damages resulting from violation of the law regarding posted workers working conditions, even after the employment contract is terminated.
5. Employers and services contractor’s responsibility
The employer of the posted worker is responsible for any obligations foreseen in the applicable law, related to the employment relationship, namely:
- Any delayed net retributions;
- Any delayed payments, as well as tax and social security contributions unlawfully deducted from the employee’s salary;
- Reimbursement of any amounts regarding the net retribution or lodging, retained or deducted from the employee’s salary to pay lodging granted by the employer;
- Any contributions due to common funds or social partners organizations, if that is the case, unlawfully deducted from the employee’s salary.
The new Law establishes that, in the context of a posting of workers, the contractor to which the services are provided is joint and several liable, as direct subcontractor, for any delayed net retribution due to the employee from the services provider, regarding the period that the contractor has received the services.
Related practice areas