New legal system created for industrial injuries and occupational diseases
A new legal framework regulating industrial injuries and occupational diseases was adopted in Portugal in September 1997. It will amend the existing system of employment relationships and broaden the scope of benefits awarded up till now.
Law No. 100/97, which establishes a new legal framework for industrial injuries and occupational diseases in Portugal, was published on 13 September 1997. This law had long been awaited, in view of the growing need to replace the legislation currently in force (Law No. 2127, of 3 August 1965), which was passed during the country's corporatist period within the framework of a system whose main principles are now well out of date. Furthermore, the world of business and production has profoundly altered since then, and similar amendments have been taking place in the legislation governing accident prevention and safety at work. It had therefore become urgent to carry out an extensive review of the system that had been in force since 1965.
The new law - which lays out the general framework of new rules - has not yet come into force and will do so only when a further regulatory law (diploma regulamentar) itself comes into force. The latter governs the detailed application of the new rules and is due to take effect 180 days following adoption of Law No.100/97 - that is, in March 1998 (though governments do not always abide by the deadline).
Assessment of the new system
Preparation of a new legal system for accidents at work came in response to increasingly evident needs. These needs resulted from the incompatibility of important aspects of this field with the labour laws that had been approved since the overthrow of the corporatist system in 1974, as well as the requirements of a business world that was very different from that which had served as the model for the 1965 system. In addition to this, acute problems were beginning to be noted in the labour courts, given the number of legal decisions being made about health and safety and, furthermore, because of the high accident claim rates being recorded in Portuguese companies. The system was also having to make adjustments to comply with EU legislation.
Even though this is only the briefest of summaries, it must be stressed that the reform falls far short of the expectations that had been aroused. One reason for this is that the amendments are much less profound than had been expected. A second reason is that several of the more complex questions (such as the legal treatment of accidents taking place on the way to work) have been put off until publication of the regulatory law referred to above. Experience of the way in which the Portuguese legal system tends to operate suggests a certain amount of scepticism as to compliance with the established deadline (180 days) by which time this regulatory law should be published.
The most important principal amendments introduced by Law No. 100/97 are as follows:
- for the purposes of applying the new system, the concept of "worker" is extended to include most situations in which a person is in practical training prior to the signing of a contract of employment, and the situation of company directors, managers, supervisors or equivalent, when these are in receipt of remuneration;
- self-employed workers are obliged to take out insurance that guarantees their protection in the event of an accident that will affect their capacity to work or their earning capacity;
- in the case of accidents affecting Portuguese workers - or foreign workers resident in Portugal - when working abroad, in certain cases it is possible to choose the legal system to be applied (either the Portuguese system or that of the state where the accident occurred);
- the concept of what constitutes an accident at work is extended to cover the situation of workers' representatives whenever these are exercising their representative functions;
- new benefits are introduced, such as a subsidy for serious permanent disability and a subsidy for necessary refurbishment and adaptation of the disabled worker's home;
- the range of beneficiaries is extended expressly to include (through the application of the constitutional principles now in force) partners who are living under a system of common law marriage with workers who have been affected by accidents at work, as well as such children as have been adopted either fully or under certain limitations;
- an amendment is made to the concept of pay which serves as the basis for the calculation of the financial compensations to be awarded; and
- the system of compulsory insurance is changed, with all organisations now required to take out health and safety insurance.
In addition to these changes, the new law seeks to adapt the terminology and concepts of the previous system to the legal framework currently in force.
The new law remains just as silent as the previous system about the role of collective bargaining. However, if such an omission was understandable in the earlier system due to the limitations placed on collective bargaining by the corporatist system, it is no longer possible today to understand why such an omission is still maintained, particularly in view of the fact that various collective agreements contain provisions on accidents at work and their correlation with the coverage of other types of risk (for example, making it compulsory to take out personal accident insurance whenever a worker is required to travel).
The absence of any indication in this law as to the types of intervention allowed by worker representative structures would appear to be a highly controversial issue. (António Nunes de Carvalho)