Portugal: temporary agency work and collective bargaining in the EU

  • Observatory: EurWORK
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  • Published on: 18 December 2008



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Since 1989 TAW is regulated by law. Collective agreements or tripartite arrangements play no role in this relation. The recent Law for TAW (2007) gives a clear definition of the central aspects of TAW and establishes a comprehensive regulatory framework. The employers’ association of TWA agencies (APESPE) has introduced relevant mechanisms of self-regulation (code of conduct, Ombudsman for TA Workers), but it has not succeeded in establishing the TAW as a sector in its own right. There is no specific union for TA workers.

Statistical data on TAW are largely insufficient.

Section 1. Definitions

1) In your country, is there a statutory definition of:

a) temporary agency work?

Yes, Law n.º 19/2007 (Article 2) defines it as an individual or a collective person, whose activity consists in placing temporary workers at the disposal of a third, the user. Workers are hired and paid by the agency.

b) agency worker?

Yes, Law n.º 19/2007 (Article 2) defines it as a person who signs a legal, temporary or undetermined, employment contract with a TWA, under which he (she) is obliged to render his (her) professional services to users being subject to the authority and direction of these.

c) user enterprise?

Yes, Law n.º 19/2007 (Article 2) defines it as an individual or a collective person, a profit or non- profit entity, who engages/employs under its direction and authority workers leased to it (the user enterprise) by a Temporary Work Agency.

If yes, please give definitions.

2) Is there a collectively agreed definition of:

a) temporary agency work? b) agency worker? c) user enterprise?

The only collective agreement on temporary agency work that has ever been signed (1989) was never renegotiated. It was less specific in its stipulations than the first legislation passed in the same year and it never gained real regulatory impact.

Branch or company level agreements that apply to user companies do not have specific stipulations regarding temporary agency work.

3) In your country, would you describe TAW as a sector in its own right?

No, we sustain that TAW sector institutionalization is not accomplished, yet.

There is a specific employers’ association for TWAgencies, the Portuguese Association of Companies from Employment Private Sector (Associação Portuguesa das Empresas do sector Privado de Emprego – APESPE). APESPE is affiliated at the Confederation of Commerce and Services of Portugal (CCSP) and has made serious efforts to establish TAW as a sector of its own right, for instance by publishing an ethical code for TWAgencies and by creating the figure of an Ombudsman for TAWorkers (Provedor do Trabalhador Temporário).

Despite of these efforts, APESPE has not succeeded in obtaining the general recognition of TAW as a sector in its own right, namely by trade union confederations. There is no specific union for TAWs and the only collective agreement regarding TAWs signed in 1989 has never gained regulatory force (see above). APESPE is currently trying to renegotiate this collective agreement.

Section 2. Regulatory framework

1) Have there been any changes in the law concerning TAW since 2004?

a) Yes b) No

The Law 19/2007 that regulates Temporary Agency Work introduces some changes in relation to the legislation passed in 1989, 1999, 1996 and 2003.

The role of the of the public Institute for Employment and Vocational Training (Instituto de Emprego e Formação Profissional -IEFP) as the regulatory body for TWAgencies has been reinforced by the new law. This has been criticized by the employer association of the sector, APESPE. According to APESPE the control of the sector should be in the hands of the Secretary of State for Consumers, Services and Commerce.

According to the Law 19/2007 the licenses for TWAs must be renewed every year. This was not necessary before.

Another stipulation explicitly criticized by APESPE is the obligation of TAW agencies. to have a minimum of permanent full time workers which must correspond to 1% of the average temporary workers contracted in the previous year or, if this is superior to 5000 temporary workers, at least 50 permanent full time workers (Article 11.º of Law 19/2007).

Law 19/2007 extends the general legal maximum length of an assignment from 1 to 2 years.

2) How is TAW regulated in your country?

a) Is there a legal framework specifically for TAW; and/or is it covered by general labour law (including case law/ jurisprudence)?

Yes, there is a specific legislation for TAW (Law n.º 19/2007 from 22nd May 2007) which provides the legal framework for the sector.

Portugal has a specific legislation on temporary work since 1989 (Decree Law 358/89) that was subject to changes in 1996, 1999, 2003 and 2007. Those aspects of temporary agency work that are not covered by this particular law are regulated by the general legal provisions on short-term contracts (since 2003 included in the Labour Code, Law 99/2003, from 27th August 2003).

Jurisprudence is mostly concerned with the observation of the necessary conditions for the legal use of TAW, demanding specific definitions of the TAW’s activities that allow to judge whether the use of agency work is legitimate.

b) What is the role, if any, of collective labour agreements and self-regulation?

The one and only collective agreement on temporary agency work was signed in 1989 by the Portuguese Association of Temporary Work Companies (Associação das Empresas de Trabalho Temporário, APETT), today named Portuguese Association of Companies from Employment Private Sector (Associação Portuguesa das Empresas do sector Privado de Emprego - APESPE), and the Federation of Office and Services Workers’ Unions (Federação dos Trabalhadores dos Escritórios e Serviços, FETESE).

As said before, this agreement was less specific in its stipulations than the first legislation passed in the same year. It was never renegotiated and never gained real regulatory impact.

Branch or company level agreements that apply to user companies do not have specific stipulations regarding temporary agency work. TAW permanent staff is not covered by any collective agreement but instead by a government decree that defines minimum standards for administrative workers.

The Portuguese Association of Companies from Employment Private Sector (APESPE) has made significant efforts of self-regulation by issuing a code of conduct for TWAgencies and by instituting the figure of an Ombudsman for TWA-Workers. APESPE has submitted a proposal for a new collective agreement to the Federation of Office and Services Workers’ Unions (Federação dos Trabalhadores dos Escritórios e Serviços, FETESE).

3) What is regulated in these provisions? In particular, does it cover:

use of agency work (e.g. length of assignment, sectoral bans, permitted reasons of use, number of agency workers per company, other)

The Law 19/2007 contains stipulations regarding

❑ The definition of central notions (TWAgency, TWA-Worker, User enterprise, TAW-Contract, open-ended TAW-Contract, TAW user contract) in article 2,

❑ License and supervision in articles 3-12,

❑ The form, contents and length of contracts (TAW-Contract, open-ended TAW-Contract, TAW user contract) in articles 13-32, including the permitted reasons of use (article 18), the length of assignment and work contracts, number of fulltime staff at the TWAgencies in relation to the number of agency workers, etc.

The Law 19/2007 does not stipulate any sectoral ban, but APESPE states (and criticizes) that TWAgencies are not allowed to operate in the port sector.

b) the form of the contract (e.g.project, fixed-term, special contract, open ended, etc.)

Yes, articles 13.º and 14.º of Law 19/2007 establish the types of possible contracts. Article 21.º also establishes that temporary contracts can be renewed until reaching a total maximum period of two years.

c) social security and social benefits

Yes, article 41.º of Law 19/2007 establishes social security obligations of TAW. Temporary workers are viewed like other employees and the transfer of the social security contribution to the public pension fund is the TWAgencies’ responsibility. This refers to the workers’ and the companies’ contribution.

d) conditions to open a TAW agency (e.g. license or authorisation schemes, supervision by public authorities, financial requirements, or others - please specify)

Yes, articles 8.º, 9.º of Law 19/2007, for instance, establishes obligations for TAW license, article 10.º establishes obligations in case of work abroad, like a specific deposit, and article 6.º imposes a deposit for TAW.

e) business activities/services delivered by TW agencies (e.g. prohibition to provide other services than TAW)?

The law on temporary agency work (19/2007) does not prohibit explicitly that TAW agencies provide other services, but it establishes a set of services that may be delivered by TWAgencies (Article 3), namely: temporary agency work, services in the areas of selection of personnel, occupational orientation and training/education, consultancy in human resources and human resource management.

f) third-national companies or temporary agency workers (e.g. activities of foreign agencies)?

No, there is no special legislation for activities of foreign agencies.

[Correspondent:] Please answer for each part (a) to (f). Please state clearly whether there is any regulation or not and if so, whether it is based on law, collective agreement or other regulation.

4) Do any regulations (by law and/or collective bargaining in the TAW sector) specify equal treatment rights for agency workers with permanent workers in the user enterprise concerning:

a) pay –

Yes, article 37 of Law 19/2007 establishes that the payment of TAWorkers must be made according to the regulation applying to the company, which may be a collective agreement or a law.

b) training –

Yes, article 39 of Law 19/2007 establishes that TAW agencies must provide training for temporary workers if their work contract exceeds 3 months in a year. The law also defines the responsibilities of the TWAgencies and the user enterprise.

c) other terms or conditions of employment? –

Yes, article 33 of Law 19/2007 establishes that security and health services of the user company must include temporary workers. The same is stipulated in article 273.º of the Labour Code (Law 99/2003).

If yes, please give details.

5) Do TAW workers have the right to information, consultation and representation?

According to the Labour Code (2003) all workers' have the right to information, consultation and representation (Articles 275, 277).

Article 42 of the TWA-Law (19/200/) establishes that TAWorkers are taken into consideration with regard to the representative bodies in the TWAgencies and in the user enterprises, namely in relation to the constitution of these bodies.

The TWA-Law (19/200/) contains specific stipulations of TAWorkers regarding health and safety, as for instance obligations of user enterprises regarding the information to workers’ representatives (in health and safety and the general works council) and their onccupational health and safety.

6) Is there a control/enforcement mechanism regarding any TAW regulation?

The public Institute for Employment and Vocational Training (Instituto de Emprego e Formação Profissional -IEFP) is the regulatory body for TWAgencies and controls/enforces TAW regulation.

A tripartite working group for monitoring health and safety at temporary work has been set up under the roof of the Authority for Working Conditions (Autoridade para as Condições de Trabalho – ACT), but this group has not initiated its activity, yet.

In July 2007 APESPE created the figure of the “Ombudsman for the temporary agency worker” (provedor do trabalhador temporário).

If yes,

a) is there a special labour inspectorate or a bi-partite body governing TAW?

No, TAWorkers are covered by the general Authority for Working Conditions (Autoridade para as Condições de Trabalho – ACT).

b) are there any sanctions/penalties for not respecting the regulations (whether stemming from law and/or collective agreements)?

Yes, articles 44.º and 45.º of Law 19/2007 stipulate several sanctions. The strongest sanctions are previewed for TWAgencies without license, deposit and technical preparation. And also for user companies which contract with not licensed TAW agencies, use temporary workers in dangerous workplaces without preparation nor medical assistance.

The IEFP is entitled to refuse the issuing or renewal of the license of a TWAgency if the company does not meet the legal standards established by the Law 19/2007.

7) Are there any procedures governing use of TAW and strike breaking?

In particular, can workers on strike be replaced by agency workers?

The Labour Code (Law 99/2003, Article 596) prohibits the substitution of striking workers by any other workers. This includes agency workers.

Section 3. Social dialogue and collective bargaining

1) Is there any employers’ association(s) for TAW firms in your country?

If yes, please provide any data on membership (e.g. sectoral coverage of firms/workers)

Yes, the Portuguese Association of Companies from Employment Private Sector (Associação Portuguesa das Empresas do sector Privado de Emprego – APESPE).

APESPE states that it has 50 member companies.

The sectoral coverage it represents is not known since there are no recent data available on TAW agencies registrations.

2) Is there any union(s) specifically for agency workers?

If no, have any unions or confederations targeted the recruitment of agency workers? launched any campaigns around agency workers’ rights?

No, there are no unions specifically for agency workers.

There is no information available regarding union campaigns around agency workers’ rights.

3) Collective bargaining levels

Is TAW governed by collective bargaining at:

a) intersectoral/ national level? –

No.

b) the sectoral level for TAW? –

No. There is one sector level agreement on temporary agency work that was signed in 1989, but this agreement has never governed TAW. (see above).

c) company (ie. temporary agency firm) level? –

No.

[Correspondent:] Please also refer to multinational companies with/ without European Works Councils, if relevant to your country.

According to APESPE, the main multinational TAW companies are working in Portugal.

4) Collective bargaining outcomes

Please provide examples and details of any recent/ significant collective agreements governing TAW at the levels referred to in question 3.

Does not apply (see above).

5) Are there any examples of sector- or company-level collective agreements in other sectors that restrict, permit or otherwise regulate the use of TAW within their domain?

No.

6) Please provide any data concerning:

a) trade union density for agency workers –

NA

b) the coverage of collective bargaining within the sector –

According to Quadros de Pessoal 2005*, there are 10843 workers covered by the sector agreement published in 22nd december 1989 (p.203). As said before, this agreement never gained regulatory force.

Section 4. Employment and working conditions of TA workers

1) Please provide the most recent data (averages) on TAW employment

a) longevity of TAW employment, i.e. how long workers remain employed

- in the sector? NA

- with a particular agency? NA

b) duration of TAW placements, i.e. i.e. the length of assignment in a user company.

NA

There is no available data.

2) Please provide any evidence from official, academic and social partner sources concerning:

a) the reasons for user companies’ usage of TAW, including any differences by sector, occupation, firm size etc.

NA

UGT- adjustment of workforce to market fluctuations.

b) reasons for workers participation in the sector and levels of satisfaction, including any differences by age, sex, education etc.

NA

There is no new data on TAW since the last report of 2005.

3) In practice, which rules and procedures may apply to temporary-agency workers in contrast to other workers in the user company?

NA

Section 5. The extent and composition of TAW.

1) For 2004 and 2007, please state

a) the number of agency workers –

According to APESPE communication on the Diálogo Sectorial sobre Empresas de Trabalho Temporário, Merchandising e Contact Centers**, TAW employment represents about 2% of the active population. According to data published by the Labour Ministry (Statistical Bulletin, December 2007), the sum of TAWorkers and independent workers with a service contract was in the first quarter of 2006 103,400 (1st quarter 2005: 68,000).

b) total revenues of the TAW sector –

According to APESPE communication on the Diálogo Sectorial sobre Empresas de Trabalho Temporário, Merchandising e Contact Centers**, from the 9th February 2007, the 50 companies affiliated at APESPE had a revenue of about 750 million €. 200 out of the total of 250 licensed TWAgencies are not affiliated at APESPE.

2) What proportion of the TAW workforce is currently

a) male/ female?b) full/part time?c) young (<c. 25) or older (>c. 50) workers?

NA

3) Has there been any changes to the TAW sector in terms of

a) concentration, i.e. proportion of employees or turnover accounted for by the largest firms?b) internationalisation, i.e. number/significance of multinational TAW firms?

According to APESPE, multinational companies are more important now in the sector and the sector is growing due to unemployment.

4) What is your evaluation of the availability and quality of statistical data concerning TAW in your country?

Statistical data are largely insufficient.

Commentary by the NC

Trade unions consider temporary agency work a precarious type of employment. As unions prefer stable employment relations (which are more favourable to trade union organisation) they do not give priority to temporary agency work.

Social partners did not refer to the perceived impact of EU-level regulation in TAW.

Reinhard Naumann and Raquel Rego, Dinamia

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