Introduction
The Labour Law in force, the Law 23/2007 of 1 August, has more than 16 years of existence. Therefore, considering that our society had an evolution since the approval of the mentioned Law, which resulted in the appearance of situations that were not regulated on it (on the Law 23/2007 of 1 August), among others, the legislator approved the new Labour Law, on 7 August 2023, which was promulgated by the President of the Republic, on 22 August 2023, and published 3 days later (on 25 August 2023).
The new Labour Law is the Law 13/2023 of 25 August and will enter in force on 21 February 2024.
The new Labour Law contains changes in respect to the regime of protection of the employee’s dignity, of the subjects of the individual employment relationship, of the formation of the employment contract, of the duration of the employment contract, of the powers of the employer, of the modification of the employment contract, of the duration of the performance of work, of the interruption of the performance of work, of the suspension of the employment relationship, of the general provisions on strikes, of the work accidents and occupational illness, of the occupational evaluation of employees, and the introduction of a Glossary with the definition of the key words of the Law, as we develop below:
I. Regime of protection of the employee’s dignity
I.1. Foundation of the right to work and of the rights of personality of the employee
The new Labour Law establishes the foundation of the right to work and of the right of personalities of the employees, in the articles 6 and 7, respectively.
The article 6 of the new Labour Law establishes the right to the work freely chosen, with equality of opportunities, without any kind of discrimination, being, nevertheless, that right linked to the obligation to work with strict respect to the guarantee of protection of the personal and hearth safety, among others.
The article 7 of the new Labour Law establishes that the rights of personality of the employee comprise the right to life, to personal safety, to moral integrity, to honour, to reputation and to privacy, which must be respected by the employer.
I.2. Regime of maternity and paternity leaves
The new Labour Law increases the periods of the maternity and paternity leaves, in the articles 14 and 15, respectively.
Pursuant to the article 14/1 of the new Labour Law, the female employee shall be entitled to maternity leave of 90 consecutive days, which may commence 20 days prior to the expected delivery date. In the Law 23/2007 of 1 of August, article 12, the period of the maternity leave is correspondent to 60 days, which means that the new Labour Law increases the period of the maternity leave for 30 days.
Pursuant to the article 15 of the new Labour Law, the male employee shall be entitled to paternity leave of 7 days, commencing in the day following the birth of the child, which may, nevertheless, be granted in the period of one year and six months after the previous leave had been taken. The paternity leave is granted for 60 days in case of death or disability of the mother, when certified by competent sanitary entity. In the Law 23/2007 of 1 of August, article 12, the paternity leave is given for one day, every two years, and the paternity leave of 60 days in case of death or disability of the mother is not previewed.
II. Regime of the subjects of the individual employment relationship
The new Labour Law classifies the employer in four categories, considering the number of employed people, namely (article 25): (a) Micro employer – who employs up to 10 employees; (b) Small employer – who employs from 11 to 30 employees; (c) Medium employer – who employs from 31 to 100 employees; Large employer – who employs more than 100 employees. The Law 23/2007 of 1 August does not classify the employer, but the enterprise in three categories, namely, small (which employs up to 10 employees), medium (which employees from 10 to 100 employees) and large (which employs more than 100 employees), according to its article 34.
The new Labour Law establishes the faculty of the employee to enter an employment contract with several employers and increases the minimum age for admission of the employees to 15 years, since the minor has the permission of the respective legal representative, and to 18 years, without need of permission of the legal representative (articles 27, 28 and 29). The Law 23/2007 of 1 of August allows the execution of the employment contract with minors from 12 years of age, with the permission their legal representative (article 27).
The new Labour Law establishes new quotas for hiring foreign national employees, namely (article 34): (a) 15% of the total number of employees in the micro employers; (b) 10% of the total number of employees in the small employers; (c) 8% of the total number of employees in the medium employers; (d) 5% of the total number of employees in the large employers.
III. Regime of formation of the employment contract
The new Labour Law develops the regime of the promissory contract of work, stating its definition, its essential elements and the applicable legal framework.
III.1. Definition of the promissory contract of work
The new Labour Law states that the promissory contract of work is the act through which the parties, promiser employer and promiser employee, express their will to enter a definitive employment contract, undertaking the obligation in that way (article 37, paragraphs 1 and 2).
III.2. Essential elements of the promissory contract of work
The new Labour Law establishes that the promissory contract of work must (article 37/2): (a) be written; (b) contain the identification, the signatures and the address or headquarters of the parties; (c) have as its essence the express and clear declaration of the will of the parties to obligate themselves to enter the employment contract; (d) indicate the type of the employment contract, the activity to be performed and the correspondent remuneration.
III.3. Legal framework applicable to the promissory contract of work
The new Labour Law establishes that, for the purpose of the formation and validity of the promissory contract of work, the rules established on it (on the new Labour Law) are applicable (article 37). To the promissory contract of work are not applicable the rules of the promissory contract stated in the Civil Code (article 37/4).
However, the new Labour Law establishes that, in the execution of the promissory contract of work, the parties have the right to set freely its contents, acting pursuant rules of good faith, and the failure to comply with it subject the party who fails to compensate the other party according to the general rules of the civil liability (article 37, paragraphs 3 and 5).
III.4. Elements that distinguish the regime on the new Labour Law to the regime on the Law 23/2007 of 1 August
The rules of the promissory contract of work stated in the new Labour Law have some differences in relation to the rules of the Law 23/2007 of 1 August, because:
a) The new Labour Law defines clearly the essential elements of the promissory contract of work, while the Law 23/2007 of 1 August does not, which forces to apply subsidiary the rules stated in the Civil Code;
b) The new Labour Law establishes that the rules applicable to the formation and validity of the promissory contract of work are those stated on it (on the new Labour Law) and that the rules of the promissory agreement stated in the Civil Code do not apply, while in the Law 23/2007 of 1 of August these rules are applicable with exception of the provisions of the article 830 of the mentioned code.
IV. Regime of the duration of the employment contract
IV.1. Regime of the duration of the fixed term employment contract
The new Labour Law establishes maximum duration of two years and faculty to be renewed twice for the fixed term employment contracts, in the same premises as the Law 23/2007 of 1 August (article 42/1).
However, the new Labour Law establishes that the micro, small and medium employers may freely enter fixed term employment contracts in the first eight years of activity (article 43/3). This provision represents a reduction of the deadline of 10 years that is established for the same purposes in the Law 23/2007 of 1 of August, in its article 42/3.
IV.2. Regime of duration of unspecified term employment contract
The new Labour Law establishes as a premise for expiration of the unspecified term employment contract, essentially, the occurrence of facts that the parties have given the extinctive effectiveness (article 46/1), in the same grounds established in the Law 23/2007 of 1 August, although this refers, imprecisely, to the concept of denunciation.
Pursuant to the article 46/3 of the new Labour Law, the expiration of the unspecified term employment contract, unless a contractual stipulation to the contrary, must be communicated to the employee with the prior notice under the following deadlines: (a) 15 days, if the time of work is superior to 6 months and does not exceed 3 years; (b) 30 days, if the time of work is superior to 3 years and does not exceed 6 years. The unspecified term employment contract that exceeds 6 years, consecutive or interpolated for a period up to six months, convert into a permanent employment contract (article 46/4 of the new Labour Law).
The employer who breaches the deadline of the prior notice of the unspecified term employment contract incurs into an obligation to pay compensation to the employee on amount correspondent to the remuneration that the employee would earn in the period of the prior notice (article 46/5 of the new Labour Law).
The employee who intends to terminate the unspecified term employment contract during the period of its execution has the obligation to communicate the employer with a prior notice of 15 days (if the time of work is superior to 6 months and does not exceed 3 years) and of 30 days (if the time of work is superior to 3 years and does not exceed 6 years), failing which the employee shall incur to an obligation to pay, to the employer, a compensation correspondent to 45 days of salary for each year of service (article 46/6 of the new Labour Law). The employer who terminates or dismiss, without just cause, the employee that has entered an unspecified term employment contract, incur into an obligation to pay a compensation correspondent to 45 days for each year of service (article 46/7 of the new Labour Law).
V. Regime of the disciplinary power of the employer
The new Labour Law establishes the regime of the disciplinary power in the same premises as the Law 23/2007 of 1 August, with exception of some particularities on the deadlines of prescription of the disciplinary offenses and on the introduction of the regime of the abuse of disciplinary power.
V.1. Particularities on the deadlines of prescription of the disciplinary offenses
The new Labour Law establishes the deadline of prescription of the disciplinary offenses, of 6 months, in the way established in the Law 23/2007 of 1 August.
However, the new Labour Law imposes the suspension of the prescription of the deadline in mention during the period of maternity and paternity leaves or during the period in which the employee is deprived of his/her liberty or unable to appear to work because illness (article 66/6). The Law 23/2007 of 1 of August does not preview the suspension in mention.
V.2. The regime of abuse of disciplinary power
The new Labour Law introduces the regime of abuse of disciplinary power, in its articles 74 and 75.
Pursuant to the mentioned regime, it is considered abuse of disciplinary power when are exceeded the limits imposed by law, good faith, good practices, the social or economics purposes, namely, when they result from (article 73/1): (a) complaint of violation of fundamental rights, liberties and guarantees; (b) the refuse on complying illegal order or order that breaches the employee’s fundamental rights, liberties and guarantees; (c) exercise or candidacy to a union position or to a similar position, communicated to the employer. In these cases, the employee has the right to complain, to impugn hierarchically, to use judicial means or any other means of resolution of disputes (article 73/2).
The application of the disciplinary sanction with abuse of disciplinary power is illegal and the employer may be sanctioned to (article 74 of new Labour Law): (a) pay a compensation correspondent to a monthly salary of the concerned employee, if the sanction applied is verbal reprimand or written reprimand; (b) pay a compensation correspondent to five times the amount of salary that the employee has not been paid, illegally, if the sanction applied is the fine or the demotion. In case of application of the sanction of dismissal, the employee is reintegrated or is paid a compensation correspondent to 45 days of salary per year of service (in case of permanent employment contract) or compensation correspondent to the remuneration that would be entitled to between the day of the termination of the employment contract and the day stipulated for its expiration (in case fixed term employment contract) – article 74/2.
VI. Regime of modification of the employment contract
The new Labour Law maintain, essentially, the regime of modification of the employment contract, but it introduces some rules that restrict the concept of transference of the employee and its formalities.
Pursuant to the mentioned rules, the employer may transfer the employee: (1) temporarily, for a period up to six months or up to one year, to another place of work, due to exceptional circumstances related to administrative or productive organization of the enterprise, which must be communicated to the Ministry of Labour (article 82, paragraphs 1 and 2); (2) definitively, in case of total or partial change of the enterprise or establishment where the employee performs the services, unless there is a contractual stipulation to the contrary (article 82/3).
However, according to the rules in mention, it is not considered transference of an employee if the dislocation is in the same geographic space that do not exceed 30 Km, as well as in case of a simple dislocation on job’s trip (article 82/8).
The transference in mention must be executed through a written document, duly grounded and communicated to the concerned employee with a minimum prior notice of 30 days (article 82/9).
VII. Regime of duration of the performance of work
The new Labour Law introduces the working hours in regime of alternance, which integrate a maximum of four weeks and must (the mentioned regime) observe the following (article 96, paragraphs 1 and 2): (a) the effective normal working hours may be up to 12 hours with a rest interval of a minimum of 30 minutes; (b) the rest period may not be less than the half of time of effective work; (c) the time of dislocation of the employee from and to the work place counts for purposes of the rest period; (d) the weekly and complementary rest days, holidays and leave for day off that coincide with the period of effective work are considered normal working days and entitle the employee to a compensatory rest; (e) the rest period does not replace the right to annual holidays. The work in regime of alternance that exceed the annual duration calculated at ratio of 48 weekly hours, deduced in annual holidays, public holidays and leave for day off is considered overtime (article (96/3 of the new Labour Law).
VIII. Regime of interruption of the performance of work
The new Labour Law introduces changes in respect to the annual holidays, establishing that the employee is entitled to 12 days of paid holidays in first year of work and to 30 days of holidays in the following years (article 108/1). In the Law 23/2007 of 1 August, article 99/1, the employee is entitled to: (a) one day of holidays for each month of effective work, during the first year of work; (b) two days of holidays, for each month of effective work, during the second year of work; (c) thirty days of holidays for each year of effective work, from the third year of work.
Essentially, realistically, the difference between the two regime is related to the fact that the employee is entitled to 30 days of holidays from the second year in the new Labour Law, while in the Law 23/2007 of 1 August the employee is entitled to 24 days of holidays in the second year and 30 days of holidays from the third year.
IX. Regime of suspension of the employment relationship
The new Labour Law states a detailed regime of the suspension of the employment contract grounded on major force and fortuitous case and it defines:
a) Major force as any fact from the nature, unpredictable, inevitable, independent from human will, which consists in, namely, catastrophes, earthquakes, pandemics and epidemics, flood, overflow, cyclones, fire, landslide, volcanic eruptions or seaquakes, nuclear radiations, spillage of hydrocarbon, plague or other facts that affect or may, predictably, affect the normal activity of the enterprise or of the establishment (article 134/1);
b) Fortuitous case as unpredictable fact, although avoidable, that may affect the normal activity of the enterprise or of the establishment (article 134/2).
The regime of suspension in mention is also applicable in cases of imminent aggression by foreign forces, war, insurrection or acts of force that affect or may, predictably, affect the normal activity of the enterprise or of the establishment, except the case in which the suspension is grounded in facts that are in the scope of its normal risk of the activity (article 134, paragraphs 3 and 4 of the new Labour Law).
The suspension of the employment contract for economic reasons, major force and fortuitous case is null when the employer hires new employee(s) to replace the suspended employee(s) (article 133/8 and 134/6).
The employer must communicate the suspension to each concerned employee through a written document, indicating the grounds of the suspension and the date of its commencement and duration, when it is possible. The copies of the communication in mention must be addressed to the Ministry of Labour and to the union body of the enterprise and, in case this does not exist, to the union body of the field of activity of the enterprise or of the establishment (article 134/8).
X. General provisions on strikes
The new Labour Law removes the restriction to exercise the right to strike by public sector. The Law 23/2007 of 1 August, article 196, establishes that the exercise of the right to strike regulated on it shall not extend to the public sector.
XI. Regime of the work accidents and occupational illness
The new Labour Law removes the obligation for the enterprises to have specific collective insurance for activities whose characteristics expose the employees to severe occupational risk, which is stated in the article 232 of the Law 23/2007 of 1 of August.
XII. Regime of the occupational evaluation of employees
The new Labour Law states rules to hire, exceptionally, experienced retired employees, which must be grounded on the need of transmission of professional experience to the younger employees (article 256/2). Under these rules, the hiring of a retired employee may only occur for a maximum period of 5 years renewable once, except in case the retired employee is also a shareholder or partner of the enterprise (article 256/3).
XIII. Definition of the key words
The new Labour Law has a Glossary as an attachment, in which are defined its key words.
Conclusion
According to the mentioned above, we conclude that the new Labour Law made substantial changes to the Law 23/2007 of 1 of August, extended its rules in several matters and introduced new legal institutes, which we hope that will reflect positively in the extent of regulation of the employment legal situations.
Therefore, we have no doubts that the new Labour Law reflects an evolution in the regulation of the employment legal situations which, although it may seem to be in favour of the employee, has a positive impact to the employer, considering that the employer has, at its disposal, clear rules to manage labour legal matters, which grants major legal certainty and security about the acts to be executed in that perspective.
However, we hoped that, with these changes, the legislator would solve some dilemma of the Law 23/2007 of 1 of August, among which, the one related to the hearing of the employee in the disciplinary proceedings, considering that, in one hand, it establishes that the disciplinary sanction may not be applied without prior hearing of the employee and, in the other hand, the failure on hearing the employee may only be a cause of invalidity of the disciplinary proceedings in case of its prior request by the employee [article 65/3 and article 68/1, subparagraph a)]. The legislator maintained this dilemma in the new Labour Law [article 66/3 and article 72/1, subparagraph a)], which takes the employers to hear the employees (in disciplinary proceedings), even if they have not requested (the hearing) and even if there is no need for that purpose, to prevent an adverse effect that the failure on hearing may cause. This situation, clearly, reflects a legal uncertainty and insecurity, which we understand that the legislator should solve or should have solved in the new Labour Law.
