TEMPORARY-EMPLOYMENT AGENCY WORK
TEMPORARY-EMPLOYMENT AGENCY WORK
Expression designating temporary work in the strict sense of Portuguese terminology, consisting in the situation where one enterprise, in return for a fee, places one or more workers temporarily at the disposal of another user enterprise. (It is also referred to in popular usage as "locaçÃo de trabalhadores" or "empreitada de mÃo-de-obra", i.e . hiring-out of labour.) Following a prolonged period during which this form of employment was practised under general legal principles and provisions (having been recognized as lawful by the courts), it was subsequently regulated in Portugal (Decree-Law No. 358 of October 17, 1989) in terms similar to those of French law. Technically, this relationship is established through the conclusion of two separate contracts: a contract for services between the lessor enterprise (temporary-employment agency) and the user, in which the former undertakes, in return for a fee, to place workers at the disposal of the latter; and a contract of employment concluded between the lessor and the temporary worker being hired out, the special nature of which lies in the fact that the worker undertakes to perform work in user enterprises. Although this form of employment is not prohibited, Portuguese law has adopted a restrictive position in regard to it. First, the setting-up and operation of temporary-employment agencies are regulated in fairly stringent terms, having been made conditional on a series of formalities such as the need to obtain a licence and to deposit a sum of money as a guarantee. Second, the situations in which contracts to use such temporary work may be concluded are delimited: to replace existing employees who are absent or prevented from working; to fill jobs which are temporarily vacant; to cope with a temporary or exceptional increase in workload; and for short-lived or seasonal tasks. Maximum limits of from six to twelve months are imposed on the use of such workers.
This form of work involves a kind of "division" or "sharing" of the employer's powers: the legal employment relationship is established and always maintained with the employing enterprise (temporary-employment agency), but during the performance of work it is the user enterprise which exercises the employer's managerial authority over the worker. Disciplinary power, on the other hand, remains exclusively with the temporary-employment agency. The written contract of employment for temporary work between the temporary-employment agency and the worker must contain specified information (e.g. the reasons justifying recourse to this form of hiring, and its duration). Responsibility for paying the worker rests on the temporary-employment agency (which is deemed in law to be the sole employer), and the law stipulates that the temporary worker should receive the same pay as the user enterprise's other employees. The user enterprise becomes jointly and severally liable for this pay only in cases where its use of temporary workers is found to have contravened the law. If the temporary-employment agency fails to fulfil its obligations the temporary worker may apply to be paid by the administrative authorities out of the guarantee sum previously deposited with them by the agency.