New framework proposed for individual employment law

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In October 2001, a commission set up by the Portuguese government issued its report on individual employment law. It proposes the creation of a new framework law, setting out in a systematic way the regulatory norms concerning the employment relationship, which are currently organised in a chaotic fashion.

A Commission for the Analysis and Systematisation of Labour Law (Comissão de Análise e Sistematização da Legislação Laboral), made up of 10 labour law experts, was created at the beginning of 2000 (PT0008104N). The legal instrument which established the commission (Order nº 5875/2000 of 15 March 2000) stated that 'Portuguese labour law needs to be reviewed on the basis of a far-reaching study in which all concerned take part, and which ensures both the technical and legal quality of the review itself and the existence of an adequate degree of social consensus behind it.'

In October 2001, the commission's report was presented to the government, submitted for discussion by the social partners in the Standing Commission for Social Concertation (Comissão Permanente de Concertação Social, CPCS) of the tripartite Economic and Social Council (Conselho Económico e Social, CES) and published for public consultation.

The report covers only the employment relationship (relação de trabalho) - the expression used to designate the legal bond which is established between employer and employee by virtue of their concluding a contract of employment (contrato de trabalho) - and does not touch upon legislation in respect of collective labour relations (relações colectivas de trabalho).

The commission's study contains 270 points. It does not propose changes to the content of the norms that govern the contract of employment, but instead seeks to systematise them, involving the cataloguing and rewriting of the current norms, structuring and organising them in a framework law in a similar fashion to the Spanish Workers' Statute. Portuguese legislation on individual employment relationships has long been seen as somewhat 'chaotic'. Since Law 49 408 of 1969, the Contract of Employment Act (Lei do Contrato de Trabalho, LCT), which codified the employment relationship, legislation has been amassing in a non-systematic fashion, often underpinned by values that hark back to periods of socio-political and institutional upheaval in the country.

The document seeks to systematises employment relationship norms in Portugal by dividing them into:

1. a central body of standards (corpo normativo central) that regulates workers' activity that takes place under the employer's authority and direction ('legal subordination') in general;

2. legislative regimes independent of the central body of standards, but referring to it. This refers to norms that regulate specific employment types and situations, such as temporary agency work, workers attending study courses, foreign workers, maternity and paternity leave, minimum guaranteed wage and delayed payment of wages; and

3. autonomous labour law linked to the central body of standards, providing guidelines for the areas of equal opportunities, certification of competence/skills, vocational training, accidents at work and occupational illnesses.

The central body of standards would cover the following issues:

• the scope and sources of the contract of employment;

• individual employment contracts;

• rights, duties and guarantees of parties;

• discipline at work;

• work performance - aim of the performance of an activity, organisation of working time and absences;

• pay and remuneration;

• variation of the contract of employment;

• temporary reduction of normal working time and suspension of contract;

• termination of the contract of employment;

• employment of minors;

• workers with diminished work capacity; and

• violation of labour law.

Monteiro Fernandes, the commission's chair, stated that during the course of the body's deliberations, it had been possible to reach a consensus between the various positions concerning the theoretical premises for labour law. He stated the wish that, in the near future, Portuguese labour law should be adjusted to the country's current economic and social reality, and to new labour market characteristics and modes of employment.