Global Compliance Desk – Portugal

Portugal: Decent Work Agenda Amends the Labor Code

Law no. 13/2023 (Decent Work Agenda) was published in April 2023, amending the Portuguese Labour Code and related legislation in order to implement the EU Directives 2019/1152 on transparent and predictable employment conditions, and EU Directive 2019/1158 on maintaining work-life balance for employees. The amendment to the Labor Code shall enter into force on May 1, 2023. 

A brief summary of the main changes is as follows – 

Yearly Overtime Limit

Currently,  the maximum duration of overtime work an employee can perform is –

• • • In the case of a micro or small business, 175 hours per year;
    • In the case of a medium or large business 150 hours per year;

Employees who perform overtime work are entitled to – 

• • • 25% for the first hour or fraction thereof and 37.5% per subsequent hour or fraction thereof, on a business day;
    • 50% for each hour or fraction thereof, on a mandatory or complementary weekly rest day, or on a public holiday.

In accordance with the amendment, the payment for yearly overtime is bifurcated into two parts – 

Overtime work of up to 100 hours per year is paid at the hourly rate with the following additions:

• • • 25% for the first hour or fraction thereof and 37.5% per subsequent hour or fraction thereof, on a business day;
    • 50% for each hour or fraction thereof, on a mandatory or complementary weekly rest day, or on a public holiday.

Overtime work exceeding 100 hours per year is paid at the hourly rate with the following additions:

• • • 50% for the first hour or fraction thereof and 75% for each hour or subsequent fraction, on a working day;
    • 100% for each hour or fraction thereof, on a mandatory or complementary weekly rest day, or on a public holiday.

Employer Information Duties

The duty of information required to be provided by the employer is extended to cover the following new issues: 

• • • the use of algorithms and artificial intelligence systems for certain HR purposes, 
    • the duration and conditions of the probationary period, if applicable, 
    • the individual rights of the employee to professional training, 
    • the identification of the temporary work user, 
    • Additional work regime, organization shift work regime, within the scope of the normal daily and weekly working hours.
    • the method of payment of the remuneration and a breakdown of its constituent elements,
    • formal requirements applicable in case of termination of the contract,
    • the annual number of hours worked, the annual number of full-time work days, the period of work and the individual right to compensation during the period of inactivity, in case of intermittent work. 

The information must be provided on or before the seventh day of the employment becoming effective or, for certain matters, within one month of the same date, and the employer must keep evidence of the transmission or receipt of information.

Parental Leave

• • • In the event of initial parental leave over 120 days, after enjoying those first 120 days, both parents can now choose to cumulate the remaining period of leave daily with part-time work, corresponding to half the normal period of daily working time. 
    • The mother’s exclusive parental leave will now be counted in days instead of weeks, corresponding to 42 consecutive days following childbirth.   
    • The father’s exclusive parental leave will increase to 28 consecutive or be taken in part of at least 7 days, in the 42 days following the birth of the child. Also, 7 days of the leave must be taken consecutively immediately afterward. The father shall also be entitled to 7 additional days of leave, consecutive or interpolated, simultaneously with the mother’s initial leave.  In case the child has to be hospitalized right after birth, the father can apply for leave suspension during that time.  
    • Hospitalization of Child – In case of hospitalization of a child after birth due to special medical care requirements, the leave duration of 120 days is increased by a maximum limit of 30 days. The duration of leave shall also be increased by 30 days for hospitalization if the birth of the child takes place up to and including the 33rd week. 

Adoption Leave

In case of the adoption of a minor under the age of 15, the male employee who is adopting shall now be entitled to the exclusive parental leave of the father.  The applicant for adoption can now use up to 30 days of initial parental leave during the transition and follow-up period. In case of multiple adoptions, the period of adoption leave shall be increased by 30 days (120 + 30 days) or increased by 2 days for exclusive leave for the father’s adopting a child. 

Bereavement Leave

• • • Employees shall be entitled to up to 20 consecutive days of leave due to the death of a spouse not separated from persons and property, son, or stepson. 
    • Employees shall be entitled to up to 5 consecutive days of leave for the death of another blood relative or of a relative by affinity in the first degree.
    • Employees shall be entitled to 3 consecutive days of absence for mourning for the loss of a child still in the gestation phase. Both parents will be entitled to the bereavement days, without any loss of rights or pay cut. 
    • The father or mother is entitled to leave for the duration of initial parental leave or the remaining period of leave, in case of physical or psychological incapacity of the parent who is taking the leave, as long as it lasts or due to the death of the parent who is on leave.
    • In the event of the mother’s death or physical or psychological incapacity, the initial parental leave to be taken by the father has a minimum duration of 30 days.
    • In the event of the death or physical or psychological incapacity of a non-working mother within 120 days following the birth, the father is entitled to leave for the remaining duration of the leave.

Caregiver Leave

The right to caregiver leave for a duration of up to 15 days per year shall now also extend to caregiver worker who is recognized as a non-main informal caregiver, in case of illness or accident of the person cared for. The period of absence shall be increased by 15 days per year, in the case of urgent and indispensable assistance to a person with a disability or chronic illness, who is a spouse or lives in a de facto union with the employee.

Proof of Illness

Currently, the employer may, within 15 days following the communication of the absence, require the employee to prove the fact invoked for justification, to be provided within a reasonable time.

According to the amendment, the proof of the employee’s illness shall be provided by a statement from a hospital, health center, digital service of the National Health Service, or digital service of the regional health services of the autonomous regions, or by a medical certificate. The declaration of the digital services of the National Health Service, or the digital service of the regional health services of the autonomous regions, is made through a self-declaration of illness, under oath, which can only be issued when the employee’s illness does not exceed 3 consecutive days, up to a limit of twice a year.

Telework

As per the amendment, employees with a child aged up to 3 years or, regardless of age, with a disability, chronic illness, or oncological disease who live with them in a shared table and room, shall now be entitled to carry out the activity in a teleworking regime, when this is compatible with the activity performed and the employer has the resources and means for telework.

Conclusion

The new rules will apply not only to employment contracts entered into after May 1st but also to existing contracts. Employers must review their employment contract provisions as well as practices. However, a transitional period, until 1 January 2024, was established for the amendment of collective bargaining agreement clauses contrary to the new regime for payment of overtime work.