Labour Procedural Code revised

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In autumn 1999, a law revising the Labour Procedural Code has been approved by Portugal's Council of Ministers and now awaits affirmation by the President of the Republic and official publication. The upcoming changes in procedures for court cases on labour and employment issues involves a considerable broadening of trade unions' abilities to act in such cases.

Court cases on labour and employment issues are currently governed by the Labour Procedural Code (Código do Processo de Trabalho) which was approved by Decree-Law no. 272-A/81 of 30 September 1981. This Code underwent some changes in 1989 (following substantial legal changes regarding the termination of employment contracts), in 1991 and in 1994.

The need to revise the Labour Procedural Code was expressed in the 1996 tripartite national Strategic Concertation Pact (Acordo de Concertaão Estratégica), covering 1996-9 (PT9808190F). This agreement provided for the creation of a "revision committee" and a debate in the Economic and Social Council (Conselho Económico e Social) on the organisational and functional aspects of labour administration and justice, in order to prepare a reform based on the need to ensure speed and efficiency in labour cases. In addition, the agreement stressed the need, when revising the rules governing labour law, to consider granting "legitimacy" (ie, the right to act and participate in proceedings) to trade union associations in cases where the individual rights of their members are violated, when these violations are of a general nature.

The culmination of this process was the publication of Law no. 42/99 of 9 June 1999, whereby the Portuguese parliament authorised the government to revise the Labour Procedural Code and define the content and extent of the changes to be made. Following this authorisation, the Council of Ministers has approved the Decree-Law revising the Labour Procedural Code, which is now awaiting affirmation by the President of the Republic and publication in the official journal (Diário da República).

Forthcoming changes to the Labour Procedural Code

Now that the content and extent of the changes to the Labour Procedural Code have been defined, as laid down in Law no. 42/99 (which authorises the government to act), the main direction that the reform of the rules on labour cases will take is now apparent:

• where international competence is concerned, the government has been authorised to include under the jurisdiction of Portuguese courts litigation in which the cause for complaint occurred in Portuguese territory. The government also has authorisation to uphold solutions laid down in international conventions, when it comes to invoking private jurisdiction agreements;
• the government has been authorised to provide for the representation and sponsorship of employees by the Public Prosecutor's Office (which is exercised as laid down by law, or at the request of the parties involved) to be dispensed with whenever a legal representative has been appointed, without detriment to the Office's accessory intervention in the procedure. When it comes to annulling or interpreting collective agreements, and also as laid down by Law no. 42/99, the changes to the Labour Procedural Code must extend legitimacy to include not only the signatories (trade unions and employers' associations or employers), but also employees and employers with a direct interest. With regard to this, it is important to remember that in Portugal collective agreements can be signed only by the trade unions representing the employees, and the employers' associations representing the employers (in the case of an "association agreement", or contrato colectivo de trabalho) or individual employers (in collective agreements and company-level agreements);
• in terms of legitimacy in individual employment disputes, substantial changes are on the way. The trade unions' right to take action on behalf of employees that authorise them to do so will now be recognised. This will apply both to cases dealing with measures taken by employers against any employee who belongs to a trade union's governing bodies, holds any position in a trade union or is an elected workers' representative, and to general cases involving the violation of similar individual rights of their members. The employee is assumed to have given authorisation if the trade union has informed him or her in writing of its intent to exercise its right to take action, "in representation and in substitution of" that employee, indicating the matter in question, and if the employee has raised no objection in writing within the time limit laid down by law. If the trade union is taking action in representation or substitution of the employee, the employee may intervene in the case only as an observer, and the verdict will be binding on the employee who has renounced his or her right to intervene in the case;
• still with regard to extending the legitimacy of legal intervention by collective entities, it will be established that, in cases where employees' or employers' individual rights are at stake, their associations may intervene as observers, provided that the interested parties have declared in writing that they accept this participation;
• one of the goals of the revision of the law will be to reinforce the right to job security by introducing mechanisms to speed up precautionary legal procedures to suspend dismissals. The new law will also guarantee that employees will always have the right of recourse to the Court of Appeal (the court of second instance) in cases where the outcome may be that the employee is dismissed or reinstated in the company, his or her occupational category determined or the validity or maintenance of the employment contract ruled upon;
• where the right to hygiene, safety and health in the workplace are concerned, preventive measures will be created in order to protect employees against the risk arising from facilities, work sites or work procedures that may seriously and immediately jeopardise this right; and
• the changes will also have substantial repercussions for criminal labour law procedures.

Commentary

The upcoming changes in labour procedures clearly involve a considerable broadening of the legitimacy of trade union associations in proceedings. Whatever the general opinion about the direction that has been chosen, doubts have been expressed as to the trade unions' actual capacity for intervention in this area. In other words, will they have the resources to be able to make use of the powers that the law intends to confer on them?

In addition, and referring again to the objectives of the 1996-9 Strategic Concertation Pact, the law authorising revision of the Labour Procedural Code makes no mention of the possibility referred to in that agreement of the state paying salaries owed for more than six months after an illegal dismissal, when there are delays of longer than six months in the process, for reasons that cannot be imputed to the employer. (António Nunes de Carvalho, CEU)