Key Benefits:
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DRAFT LAW NO. 277 /X
APPROVES A NEW LEGAL REGIME OF TEMPORARY WORK
(REPEAL THE DECREE-LAW NO. 358/89, OF October 17, AMENDED
BY LAW NO. 39/96, OF August 31 AND BY LAW NO. 146/99, OF 1 OF
SEPTEMBER)
Exhibition of reasons
The temporary work has targeted, since its emergence, to respond to needs
transitional status of companies in respect of recruitment and use
of workers, occupying today an embossing role in the labour market, or in the
national plan, whether in the community plan.
In effect, the recourse to temporary work allows companies and too many users
a quick and expeed access to the human resources they need, specifically
from the qualititative point of view, responding in particular to specific situations,
temporary or exceptional manpower.
Constituting an undeniable instrument of business management, particularly for the
companies that have a need to cope with extraordinary accruals of activity
or who bet on innovation and the specialization of the workforce, the temporary work
it also assumes an important role in the uptake of human resources, representing
for many workers the only gateway to the labour market.
In this context and as long as it is properly regulated, specifically in the plan of the
relations between the parties (temporary working company / worker
temp / user) ensuring respect for the rights of workers by imposing the
compliance with licensing requirements, as well as preventing competition
unfair among companies, temporary work may contribute to an adjusted and
controlled flexibilization of the labour market.
The legal regime of temporary work, as well as, the occasional ceding regime
of workers had legal consecration in Portugal, through the Decree-Law No. 358/89,
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of October 17. Since its approval in 1989, the cited legal diploma has been the subject
of two legislative amendments, specifically through the Leis paragraphs. 39/96, from 31 of
August and 146/99, of September 1, always with the aim of making it more appropriate
and balanced in the face of interests in presence.
For its part, the Labor Code, passed in 2003, would come to integrate the scheme
legal of occasional ceding of workers, proceeding to the express revocation of the
articles 26 to 30 of the Decree-Law No 358/89 of October 17.
Volved almost seven years on the latest revision of the legal labour regime
temporary, and with the aim of adapting it to the developments in the meantime, to ensure
a greater accountability of temporary working companies, to deepen the
rights and guarantees of temporary workers and to promote a strengthening of control
and supervision of the temporary work activity, the Members of the Parliamentary Group
of the Socialist Party present the present draft law creating a new regime of the
temporary work by revoking the Decree-Law No. 358/89 of October 17.
Through the present draft law, which keeps unchanged part of the constant regime of the
Decree-Law No. 358/89 of October 17, is intended to ensure an improvement and
updating of the legal regime of temporary work by giving you a new
framework focused on greater accountability of the parties involved in this
contractual modality and in a reinforcement of the tutelage of temporary workers.
Thus, with respect to the legal regime of temporary work currently in force,
by its importance, namely, the following innovations that
compete for the aforementioned objectives:
a) as to the temporary working companies:
i) Substitution of the prior authorization regime by the licence, which
may be required at any IEFP employment centre;
ii) Addition of new requirements for the purpose of issuing the licence,
specifically the existence of an appropriate organisational structure
(technician with habilitations and experience in the area of resources
humans and facilities suitable and equipped for the exercise of the
activity) and the impossibility of the exercise of the activity by
of whom to do or have been part of a natural or legal person who
has divides for workers, the fisc or social security,
resulting from the exercise of temporary work activity,
regardless of whether this is found or not ceased;
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iii) Forection of the enforcement mechanism of the collateral in the case of lack of the
punctual payment of the cash benefits due to the
worker, which extends for a period of more than fifteen days.
iv) Establishment of the duty of the employing company to declare the lack
of punctual payment of the benefits in divida to the worker in the
period of 5 days which, in the event of refusal or impossibility, may be
suppressed by statement from the IGT after request from the worker;
v) Consagration of a ratee regime of the collateral when the amount
of this if it shows insufficient to guarantee the amounts in divida;
vi) Payment by the IEFP, on account of the surety, of the expenses of
repatriation of workers placed abroad when
check the cessation of the respective contract of employment or in the case of
lack of the punctual payment of the consideration and the working company
temporary do not ensure repatriation;
vii) Mandatory annual proof of the maintenance of the emission requirements
of the temporary ceding activity permit of workers to
use of users;
viii) Suspension of the activity in the situations in which it is not made proof
annual maintenance of the licence issuance requirements, during
a maximum period of 2 months, finite of which the license is revoked
by the Minister of Labour on a proposal from the IEFP;
Ix) Express prohibition of ceding of workers among companies of
temporary work for further ceding to third parties.
b) As for the contract of use
(i) Adequacy of cases where a contract may be concluded
use of temporary work with express stipulation that the
even should only be celebrated for the period strictly
necessary to the satisfaction of the needs of the user;
ii) Definition of exceptional addition of activity as being a
addition whose duration does not exceed 12 months;
iii) Determination of the nullity of the contracts for use concluded outside
of the foreseen situations, considering in that case that the work is
provided to the user in a non-stop contract scheme, and may the
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worker opt in, in the 30 days after the start of the activity to the
user or the third party, by an indemnity under the article
443. of the Labour Code;
iv) Prevision of specific formalities of the contract of use, as
is the substantiated indication of the respective motive through
express mention of the facts that integrate it, establishing relation
between the justification invoked and the stipulated term;
v) In the situations of lack of written contract or omission as to the
justifying reason, the contract is deemed to be void and that the work is
provided to the user in a non-stop contract scheme, and may the
worker opt in, in the 30 days after the start of the activity to the
user, by an indemnity under Article 443 of the
Code of Labour;
(vi) Admissibility of renewal of contracts for use while
keep the respective cause justifying, up to the limit of 3 years,
save when the reason is the exceptional addition of activity
whose duration may not exceed 12 months, not applying for such
limits when the ceded workers have entered into contracts
for undetermined time for temporary ceding with the company of
temporary work;
vii) Prohibition of the succession of temporary workers for the same
job posting when the maximum duration has been reached
permitted, before a period of time equivalent to one has elapsed
third of the duration of the contract, including renovations.
c) as to the temporary employment contract and the contract of work per time
undetermined for temporary yielding
(i) Admissibility express of conclusion of contract of employment
temporary to term in the same situations in which it is permitted to
conclusion of contract of use;
(ii) Admissibility express of conclusion of contract of employment by
indefinite time, with specific formalities, for ceding
temporary between the temporary working company and the worker;
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iii) Prevision of the nullity of the temporary work contract
certain or uncertain concluded outside of the situations provided for by the
conclusion of contract of use, considering that the work
is provided to the temporary working company under contract arrangements
without a term, and the employee may opt, in the 30 days after the start of the
activity to the user or the third party, by an indemnity in the
terms of Article 443 of the Labour Code;
iv) The duration of the temporary work contract at the right term or
unsure cannot exceed 3 years, allowing for celebration by
period of less than 6 months, regardless of the situation;
v) Application to the contract of temporary employment at the right and uncertain term
of the rules of expiry set out in Articles 388 and 389 of the
Code of Work.
vi) Possibility of the temporary worker, with contract for time
undetermined for temporary ceding, being able to provide activity in the
temporary working company, during periods of inactivity of
temporary yielding.
d) As to the working conditions
i) User's obligation to inform the working company
temp and the temporary worker on the need for
appropriate professional qualification and specific medical surveillance;
ii) Consagration of a specific vocational training regime to
job title of the temporary working company;
iii) The duty of the user to inform the employee ceded about the
existence of outposts available for the exercise of
functions identical to those for which it was contracted, for the purposes of
application;
iv) Inclusion of temporary workers in the working company
temporary and in the user company for the purposes of applying the
regime on the structures of collective representation of the
workers, depending on whether they are concerned with matters concerning the
temporary work company or the user.
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e) As for the counterordinational regime
i) Application of the general regime of counterordinational liability
provided for in articles 614 to 640 of the Labour Code, without
injury to the legal powers assigned to the Autonomous Regions;
ii) Addition of new counter-ordinations and updating of their
amounts.
f) As for final and transitional provisions
i) Establishes the duty of the companies that already carry out the activity of
temporary work to adapt to the new legal provisions in the
maximum period of 90 days from the date of the entry into force of the
new regime;
ii) Eliminates the duty of delivery of certificates when in this matter it is
put in place the Simplex 2006.
As you can see, the present draft law, closes a wide set of
innovations in the face of the legal regime of temporary work in force, the approval of which
will contribute to the objectives of greater accountability of the companies they employ and
use temporary workers, and for a strengthening of the fundamental rights of these
workers.
So, in the applicable constitutional, legal and regimental terms, the Deputies of the
Lower-signed Socialist party present the following:
DRAFT LAW
Legal regime of temporary work
CHAPTER I
General provisions
Article 1.
Scope of Application
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This Law regulates the licensing and the exercise of the business of the companies of
temporary work, and well thus the contractual relationships between workers
temps, temporary working companies and using companies.
Article 2.
Concepts
For the purposes of this Law, it shall be deemed to be:
a) Temporary working company: person, natural or collective, whose activity
consists of the temporary yielding to users, of the activity of workers who, to
that effect, admits and reciproci;
b) Temporary worker: person who celebrates with a working company
temp a temporary employment contract or a contract of employment by time
undetermined for temporary yielding;
c) User: natural or legal person, with or without profit, which occupies, under
your authority and direction, employees yielded by a working company
temporary;
d) Temporary work contract: contract of employment the term concluded between a
temporary work company and a worker, by which this one obliges, upon
retribution from that, to temporarily provide its activity to users, maintaining
the legal bond-laboral to the temporary working company;
e) Work contract for undetermined time for temporary yielding: contract of
indefinite work entered into between a temporary working company
and a worker, by which this one obliges, upon retribution from that, to provide
temporarily its activity to users, while maintaining the legal bond-laboral à
temporary work company;
f) Contract of temporary work use: contract for provision of service to
resolute term concluded between a user and a temporary working company,
by which this one obliges, upon retribution, to cede one or more workers
temps.
CHAPTER II
Temporary work
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SECTION I
Exercise of the temporary ceding activity of workers for use
of users
Article 3.
Object and denomination
1. The temporary working company has the object of yielding activity
temporary workers for use of users, and may further develop
selection activities, guidance and vocational training, consultancy and management of
human resources.
2. The temporary working company shall include in its social denomination a
expression "temporary work".
Article 4.
License
1. The exercise of the temporary ceding activity of workers for use of
users, is found to be subject to leave, and for the purpose of being brought together the
following cumulative requirements:
a) Idoneity;
b) appropriate organisational structure;
c) Contributive status regularized before tax administration and safety
social;
d) the Constitution of escrow pursuant to Article 6 (1);
(e) Denomination of the natural or legal person with the designation " work
temporary ".
2. It is considered to be idoneo who:
a) Tiver capacity for the practice of acts of trade;
b) It is not covered by the suspension or prohibition of the exercise of the applied activity
pursuant to Articles 66 or 67º of the Criminal Code;
c) It is not suspended or interdict from the exercise of the activity as a measure of
security or ancillary sanction of counterordinance;
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d) Do not do or have been part of a legal or natural person who has debts to the
workers, fisc or social security, resulting from the exercise of activity of
ceding of temporary workers for use of users,
regardless of whether this is found or not ceased;
3. The idoneity is required of all partners, managers, directors or administrators of the
temporary work company, or entrepreneurs on individual behalf, in the case of
natural persons.
4. It is considered that there is an appropriate organisational structure when the company brings together the
following requirements:
a) Existence of a technician hired by the company with habilitations and experience
suitable in the area of human resources, who pay their duties on a daily basis in
company or establishment;
b) Existence of appropriate and properly equipped facilities for the exercise of the
activity.
5. For the purposes of paragraph (a) of nº4, appropriate qualifications and experience are considered,
cumulatively:
a) Conclusion with the use of secondary education or equivalent;
b) 3 years of experience in activities developed within the framework of support
administrative and organizational to the management of human resources, or 2 years of experience
professional in roles of responsibility in the area of human resource management or
1 year of experience in the area of human resource management in the case of graduates in
areas whose curricular plans integrate disciplines concerning resource management
humans.
Article 5.
Procedure
1. The person concerned shall submit the application for leave to the exercise of the activity of
temporary ceding of workers for use of users, in any centre
of employment of the Institute of Employment and Vocational Training, with an indication of the
activities to be carried out and instructed with the following documents:
a) Declaration in which the applicant indicates his or her name, tax number of taxpayer,
identity card number and domicile or, in the case of being a legal person, the
denomination, registered office, number of legal person, commercial register of constitution and of
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alteration of the contract of society, names of the holders of the social bodies and, in both
the cases, the location of the establishments in which they will exert the activity;
b) Certifying status of regularized situation before the tax administration,
relatively to the exercise of ceding activity of temporary workers to
use of users, regardless of whether or not this is ceased;
issued by the respective competent tax authority;
c) Certifying proof of regularized situation in the face of social security,
relatively to the exercise of ceding activity of temporary workers to
use of users, regardless of whether or not this is ceased;
issued by the competent social security services;
d) Documents issued by the competent competent authorities of the suitability of the suitability
of the applicant and, if it is a legal person, of the associates, managers, directors or
administrators;
e) Certifying proof that it is not covered by suspension or
interdiction of the exercise of activity as an ancillary sanction of counterordinance,
issued by the Inspectorate General of Labour;
f) being a legal person, copy of the contract of society;
g) Comoration of the requirements of the appropriate organisational structure for the exercise of the
activity or declaration under commitment of honour of the requirements that will satisfy if the
license is granted;
h) Declaration that it will constitute collateral pursuant to Rule 6º if the permit is
granted.
2. The application is appreciated by the Institute of Employment and Vocational Training, which shall
draw up the report and formulate the proposal for a decision within a maximum of 30 days.
3. The application is decided by the Minister responsible for the labour area, with faculty of
delegation of the competence, staying the effect of the licence for the exercise of the activity of
temporary ceding of workers for use of users, dependent on the
proof referred to in the following number.
4. After the signing of dispatch for licence issuance, the Employment Institute and
Vocational Training will notify the person concerned to, within thirty days, make proof
of the constitution of the surety and existence of organisational structure and proper installation
for the exercise of the activity that has been committed to meet.
5. The granting of leave is notified to the person concerned after the presentation of the proof
referred to in the previous number.
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Article 6.
Collateral
1. The surety is intended to ensure the responsibility of the working companies
temporary for the payment of the retributions and too much charges with the workers
temporarily yielded, namely contributions to social security, and may
be provided by deposit, bank guarantee or insurance contract.
2. The applicant will constitute, in favour of the Institute of Employment and Vocational Training,
a surety for the exercise of temporary work activity, of value
corresponding to two hundred months of the guaranteed monthly minimum consideration, plus the
amount of the single incident social rate incident on that value.
3. The surety shall be annually updated by reference to the amount of the consideration
guaranteed monthly minimum fixed for each year.
4. Without prejudice to the provisions of paragraph 2, if, in the previous year, there are payment of claims
to workers through the collateral, the same will be strengthened to a value
corresponding to at least 15% of the annual wage mass relative to workers in
temporary ceding that year.
5. The update referred to in paragraph º3 shall be carried out by January 31 of each year, or until
thirty days after the publication of the diploma in review of the monthly minimum consideration
guaranteed, if later.
6. The reinforcement of the collateral provided for in nº4 shall be carried out on the initiative of the company of
temporary work, until the January 31 of each year.
7. Whenever you check payments on account of the surety, the Employment Institute and
Vocational Training will notify the temporary working company to, within the
thirty days, make the proof of your reconstitution.
8. The company responsible for the deposit, bank guarantee in the modality " on first
demand " or insurance contract must communicate to the Employment and Training Institute
Professional, within 5 days, any fact that involves reduction or cessation of
warranty provided, under penalty of ineffectiveness of it.
9. Crying the exercise of the activity, the respective employees shall, for purposes
of payment through the surety, claim the respective credits within thirty days
to count from the term of the activity, as well as to communicate such a fact to the Employment Institute
and Vocational Training.
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10. Proving the temporary working company, upon declaration proving to
settlement of the claimed claims provided for in the preceding number and too much charges with
the workers, cease the effects of the surety and this shall be returned by the Office of the
Employment and Vocational Training.
Article 7.
Execution of the surety
1. In the case of the temporary working company missing the punctual payment of the
pecuniary benefits due to the employee, which extends for a period of more than
fifteen days, must the benefits in mora be fulfilled through the surety.
2. Should the existence of employee credits be verified, by decision
definitive application of fine for lack of payment of credits or decision
condensate carried on trial, the Institute of Employment and Vocational Training
shall proceed to payments due to the employee through the collateral referred to in para.
2 of Article 6º
3. The lack of punctual payment provided for in paragraph 1 shall be declared by the Company
employing, at the request of the employee, within 5 days or, in the case of refusal or
impossibility, suppressed upon declaration by the Inspectorate-General of Labour after
request from the worker.
4. Compete to the Institute of Employment and Vocational Training, the fulfillment of the
installments in arreum provided for in the preceding paragraph, and shall, for the purpose of
presented the statement of the employing company or, failing that, of the Inspectorate-General
of the Work.
5. In the case of being presented the statement of the Inspectorate-General of the Work provided for in the
previous number, the Institute of Employment and Vocational Training must notify the
temporary work company that the worker required the payment of
retribution on account of the surety and that the same is carried out if the one does not prove the
respective payment within 8 days.
6. Compete equally to the Institute of Employment and Vocational Training, at the request of the
holders of the remaining burdens provided for in Article 6 (1), compliance with
benefits in arredays of more than thirty days, and shall, for the purpose of this, be submitted to
respective supporting statement.
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7. In the event that the surety is insufficient in the face of existing claims, payment is made
in accordance with the following criteria of precedence:
a) employees ' retributive credits relating to the last thirty days of the activity,
with the limit corresponding to the amount of three monthly minimum reciprocations
guaranteed;
b) Other retributive credits per order order;
(c) compensation and compensation for the cessation of the temporary employment contract;
d) Demal charges with the workers.
Article 8.
License and registration
1. The exercise of the activity of the temporary working company is subject to the issuance of
license, which will build from alvará numbered.
2. The Institute of Employment and Vocational Training organizes, maintains permanent
updated and makes available electronically for public access, the national register of
temporary licensed working companies.
3. The record referred to in the preceding paragraph shall have public character, and may
interested to ask for certificate from the inscriptions of him constants.
4. It will be published in the 1 th series of the Bulletin of Labour and Employment the indication of the
temporary working companies licensed for the exercise of their respective activity,
as well as those punishable by the ancillary sanctions of the interdiction of the exercise
of the activity and temporary suspension of its exercise, provided for in the paragraphs. 1 a to 3 of the
article 43º.
Article 9.
Duties
1. Temporary working companies must communicate, within fifteen days, to the
Institute of Employment and Vocational Training, through the centre of employment
competent, the amendments relating to:
(a) Household or registered office and location of the establishments for the performance of the activity;
b) Identification of the directors, managers or members of the management;
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c) Subject of the respective activity, as well as their suspension or cessation by
own initiative.
2. Temporary working companies must still:
a) Include in all contracts, correspondence, publications, advertisements and mode
general in all its external activity the number and date of the licence alvate for the
exercise of the respective activity;
b) Communicate to the competent centre of employment, up to the days of January 15 and July, the
complete relationship of the workers either nationals, or foreigners, yielded in the year
previous, with indication of the name, gender, age, Number of Identity Ticket or
Passport, number of beneficiary of social security, start and duration of the contract,
place of work, contracted activity, base consideration and classification of the activity
economic (CAE) of the user and their postal code
c) Communicate to the Directorate General for Consular Affairs and Portuguese Communities,
by the days January 15 and July, the relationship of the workers yielded to provide
service abroad in the previous semester, with an indication of the name, gender, age,
number of beneficiary of the social security, start and duration of the contract, place of
work, contracted activity, base retribution, exit dates and entry into territory
national, as well as identification, classification of economic activity (CAE) and
locality and country of execution of the contract.
3. The communication provided for in paragraph (b) of the preceding paragraph shall be carried out by means of
informatics.
Article 10.
Work abroad
1. Without prejudice to the provision of collateral referred to in Article 6º (1), the Company of
temporary work that celebrates contracts for the use of workers in the
foreigner must:
a) Constituting, in favour of the Institute of Employment and Vocational Training, a surety
specific in the value of 10% of the reciprocations corresponding to the foreseeable duration of the
contracts and at the minimum of two months of consideration or in the value of the retributions, if the
contract last less than two months, plus the cost of travel for repatriation;
b) Ensure the workers medical, medicaments and hospital benefits,
always that those do not benefit from the same benefits in the host country,
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through insurance that guarantees the payment of expenses of value at least equal to six
months of retribution;
c) Ensuring the repatriation of the workers, fining the work under the contract,
checking for termination of the employment contract or, still, in the case of lack of
punctual payment of the retribution.
2. The surety provided for in paragraph (a) of the preceding paragraph shall not be required if, in the 36 months
previous or, in respect of temporary working companies constituted less
time, since the beginning of its activity, there have been no payments of credits to
workers through the surety referred to in Article 6 (1)
3. The temporary working company must, still, communicate 5 days in advance
to the Inspectorate-General Labour the identity of the workers to give in to the
foreign, the user, the workplace and the beginning and the predictable term of the
displacement, as well as the constitution of the surety and the guarantee of benefits, in the terms
of points (a) and (b) of paragraph 1.
4. The provisions of the paragraphs. 1 and 7 a to 10 of Article 6º shall apply to the surety referred to in paragraph (a) of the
n. 1.
5. If the temporary working company does not ensure repatriation in the situations
referred to in paragraph 1 (c) at the request of employees, the Employment Institute and
Vocational Training proceeds to the payment of repatriation expenses per account
of the surety.
6. The provisions of Article 7 shall apply to the surety referred to in paragraph 1 (a) where it is
are in question payments of retribution.
7. The temporary working company has a right of return against the worker
regarding repatriation expenses if dismissal occurs on an attributable basis
to the worker, denunciation without prior notice or abandonment of the work.
Article 11.
Verification of maintenance of requirements
1. The temporary working company shall make evidence to the Employment Institute and
of the Vocational Training, by the end of the first quarter of each year, of the
compliance with the requirements set out in Article 5, in respect of the previous year
2. For the purposes of the verification of the existence of an appropriate organisational structure, the
temporary work company must have a number of working full time
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that matches, at the very least , to 1% of the average number of temporary workers
contracted in the previous year or, when this number is more than five thousand, fifty
workers full-time.
3. Should the Institute of Employment and Vocational Training not notify the company of
temporary work within the period provided for in nº1, it is deemed to be fulfilled the
requirements set out in Article 5.
Article 12.
Suspension or cessation of licence
1. The Institute of Employment and Vocational Training suspending, for two months, the
exercise license for temporary ceding of workers to
use of third parties users, where the default of the
provided for in paragraph 1 of the previous article.
2. The temporary working company is equated, in the event of an exercise of activity
during the period of suspension of the license, the unlicensed company.
3. The suspension ends before the expiry of the period provided for in paragraph 1 if the company of
temporary work makes proof of the missing requirements
4. The Minister responsible for the labour area revokes, on a proposal from the Institute of the
Employment and Vocational Training the activity leave of business, whenever the
temporary working company does not do proof, during the time frame provided for in paragraph 1 of the
requirements whose absence had as a consequence the suspension.
5. The licence lapses if the temporary working company suspenses the exercise of the
activity for twelve months, for the purpose of diverting the prohibition or interdiction of the
exercise of the activity.
CHAPTER III
Contracts
Section I
General provisions
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Article 13.
Contracts to be concluded by the temporary working company
1. The exercise of temporary work depends on the celebration by the working company
temporary of the following contracts:
a) Contract for use of temporary work with the user;
b) Temporary work contract with the temporary worker;
c) Contract of work for indefinite time for temporary yielding.
2. The contract for the use of temporary work shall be concluded on a resolute term,
may this be right or unwell.
3. The temporary employment contract may be concluded on a resolute term, right or
unsure .
Article 14.
Shape
1. The contracts for the use of temporary work and temporary work, well
how to contract for indefinite work for temporary ceding , are
subject to written form.
2. The contracts referred to in the preceding paragraph shall contain the identification and the signature
of the parties and be drawn up in duplicate, being one of the copies delivered to the
worker.
Article 15.
Clauses of limitation of freedom of work
They are void the clauses of the contract of use, the temporary employment contract or
of the indefinite work contract for temporary ceding that prohibits
the conclusion of a contract between the ceded employee and the user or that, in the case of
conclusion of such contract, impose on the user or the employee the payment of
an indemnity or compensation to the temporary working company.
Article 16.
Illicit yielding
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1. Are void the contracts for use, temporary work and the contract of employment
for undetermined time for temporary yielding celebrated by working company
temporary unlicensed under the terms of this Law.
2. It is void the contract concluded between temporary working companies, pursuant to the
which one gives in to the other a worker so that it is subsequently ceded to third party.
3. In the case provided for in nº1 it is considered that the work is provided to the working company
temporary under non-stop work contract regime.
4. In the case provided for in nº2 it is considered that the work is provided to the company that
carried out the yielding on non-stop work contract arrangements.
5. In the event that the employee is ceded to a user by a working company
temporary licensed, without having entered into a temporary employment contract or
work contract for undetermined time for temporary ceding on the terms
provided for in this Law, it is considered that the work is provided by the worker to this
company in a non-stop work contract regime.
6. In substitution of the provisions in the preceding paragraphs, may the employee choose, in the
thirty days after the inception of the provision of the activity to the user or the third party, by a
compensation pursuant to Article 443º of the Labour Code.
Article 17.
Special cases of liability
The conclusion of contract for the use of temporary work with a working company
unlicensed temporary holding jointly responsible this and the user for the
emerging credits from the employment contract and its violation or cessation, belonging
to the worker, as well as the corresponding social charges, relating to the latter
three years.
SECTION II
Contract of Use
Article 18.
Admissibility of Contract
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1. The conclusion of the contract for the use of temporary work is only permitted in the
following cases:
a) Direct or indirect replacement of a missing employee or who, for any reason,
find yourself temporarily barred from providing service;
b) Direct or indirect replacement of worker in respect of which it is pending
in judgment of the liceness of the liceness of the dismissal;
c) Direct or indirect replacement of worker in a leave situation without
retribution;
d) Replacement of full time worker who pass on to work on time
partial per period determined;
e) Necessity arising from the vacancy of jobs when already decorating process
of recruitment for your fill;
f) seasonal activities or other activities whose annual production cycle presents
irregularities arising out of the structural nature of the respective market, including the
supply of raw materials;
(g) exceptional addition to the business of the company;
h) Execution of occasional task or determined service precisely defined and not
lasting;
i) Intermittent needs of labor, determined by fluctuations of the
activity for days or parts of the day, provided that the use does not exceed,
weekly, half of the normal period of work practiced in the user;
j) Intermittent needs of workers for the provision of family support
direct, of a social nature, for days or parts of the day;
l) Labor needs for the realization of projects with a temporal character
limited, specifically installation and restructuring of companies or establishments,
assemblies and industrial repairs.
2. The contract of use shall be concluded for the period strictly necessary to
satisfaction of the needs of the user referred to in the preceding paragraph.
3. The use of temporary worker in outposts is not permitted
particularly dangerous for your safety or health, save if it is your
professional qualification.
4. For the purposes of the provisions of paragraph (g) of nº1, an exceptional addition shall be deemed to be
activity the addition whose duration does not exceed twelve months.
20
Article 19.
Justification of the contract
1. The proof of the grounds justifying the conclusion of the contract for the use of work
temporary is up to the user.
2. They shall be void the contracts for use concluded outside the situations provided for in the article
previous.
3. In the case provided for in the preceding paragraph, the work shall be deemed to be provided by the
worker to the user on a non-stop work contract scheme.
4. In substitution of the provisions in the preceding paragraphs, may the employee choose, in the
thirty days after the inception of the provision of the activity to the user or the third party, by a
compensation pursuant to Article 443º of the Labour Code.
Article 20.
Specific formalities
1. Without prejudice to the provisions of Article 14º the contract for the use of work
temporary must still contain the following mentions:
a) Name or denomination and residence or registered office of the temporary working company and the
user, as well as indication of the respective taxpayer numbers of the scheme
general of social security, as well as, as to the first, the number and date of the alvshall of
license for the exercise of the activity;
b) substantiated indication of the reasons for recourse to temporary work by the
user;
c) Description of the job to be completed and, being a case of it, the qualification
appropriate professional, place and normal period of work;
d) Mongering of the due consideration, referred to in Article 36º (1), the worker of the
user who occupiers the same job;
e) Retribution due by the user to the temporary working company;
f) Start and duration, certain or uncertain, of the contract;
g) Date of conclusion of the contract.
2. For the purposes of aliena b) of the preceding paragraph, the indication of the justifiable reason shall
be made by the express mention of the facts that integrate it, and shall establish itself to
relation between the rationale invoked and the stipulated term.
21
3. In the absence of written document or in the case of omission of the mention required by the letter
(b) of paragraph 1, the contract is deemed to be void.
4. In the case provided for in the preceding paragraph, the work shall be deemed to be provided by the
user-employee under contract employment contract without a term
5. In substitution of the provisions of the preceding paragraph, may the employee choose, in the
thirty days after the inception of the provision of the activity to the user by an indemnity
pursuant to Article 443º of the Labour Code.
6. The user shall require from the temporary working company, at the time of the
conclusion of the contract for the use of temporary work, the junction to this copy of the
Accident insurance policy that encompasses the temporary worker and the
functions that he will perform under the contract of employment utilization
temp, under penalty of going on to be jointly and severally liable for the repair of the
emerging damage from an accident of work.
Article 21.
Duration
1. The contracts for the use of temporary work, without prejudice to the provisions of
the following numbers and in Article 18º (º4), may renew itself, while keeping the
its justification cause, up to the maximum limit of 3 years.
2. The duration of the contract, shall not exceed the duration of the justifiable cause.
3. It is deemed to be a single contract the one that is the subject of one or more
renovations.
4. The limits set out in paragraphs 1 and 2 shall not apply to contracts for use of
uncertain term when the ceded workers have entered into contracts for time
undetermined for temporary yielding with the temporary working company.
Article 22.
Communications
The user is obliged to communicate to the services of safety, hygiene and health in the
work and to the committee of employees, when it exists, within 5 working days of
use of workers in temporary working arrangements.
22
Article 23.
Failure to meet the deadline
In case the temporary worker continues at the service of the user decorated 10
days after the cessation of the temporary work use contract without it having
occurred the conclusion of contract that substantiates it, the work is deemed to pass the
be provided to the user on the basis of an unterminated contract of work, concluded between
this and the worker.
Article 24.
Successive Contracts
1. The succession of temporary workers at the same job is prohibited
when the maximum duration provided for in Article 21º has been reached, before it has elapsed
a period of time equivalent to one-third of the duration of the contract including
renovations.
2. The provisions of the preceding paragraph shall not apply in the following cases:
a) New absence of the substituted worker, when the contract of use has been
celebrated for its replacement;
b) Exceptional increments of need for temporary labour in activities
seasonal.
SECTION II
Temporary work contract
Article 25.
Conclusion of temporary work contract
1. The celebration of temporary employment contract the right or uncertain term is only
permitted in the situations provided for in the conclusion of contract of use.
2. It is void the term stipulated in violation of the provisions of the preceding paragraph.
23
3. In the case provided for in the preceding paragraph, the work shall be deemed to be provided by the
worker to the temporary working company under contract employment without
term.
4. Should the consequence provided for in paragraph 2 agree with that provided for in paragraph 3 of Article 19º
or in Article 20º (3) it is considered that the work is provided to the user in regime
of an unterminated work contract.
5. In substitution of the provisions in the preceding paragraphs, may the employee choose, in the
thirty days after the inception of the provision of the activity to the user or the third party, by a
compensation pursuant to Article 443º of the Code of Trabalho.6
Article 26.
Mandatory mentions
1. The temporary employment contract the term shall contain the following mentions:
a) Name or denomination and domicile or seat of the counterpersons and number and date of the alvshall
of licensing for the exercise of the temporary working company activity;
b) Indication of the grounds justifying the conclusion of the contract, with concrete mention
of the facts that integrate such grounds;
c) Activity contracted;
d) Place and normal period of work;
e) Retribution;
f) Start date of the work;
g) Term of the contract, in accordance with the provisions of Article 27º;
h) Date of the celebration.
2. In the absence of written document or in the event of omission or insufficiency of the indication
of the justifying reason for the conclusion of the fixed-term employment contract, it is considered that
work is provided by the worker to the temporary working company on the scheme of the
non-stop work contract.
3. In substitution of the provisions of the preceding paragraph, may the employee opt, in the thirties
days after the inception of the provision of the activity to the user or the third party, by a
compensation pursuant to Article 443º of the Labour Code.
4. In the absence of the mention required by point (g) of paragraph 1, the contract shall be deemed to be concluded
by the deadline of one month, not being allowed for renewal.
24
Article 27.
Duration
1. The temporary work contract the right term lasts for the agreed time, no
may exceed three years or, twelve months, when the justifiable reason invoked by the
user to be the nº1 (g) of Article 18º, including renovations, and may these
occur while keeping up with the justifying cause of your celebration.
2. The temporary work contract the uncertain term lasts for all the time required to
satisfaction of the temporary needs of the user, and may not however
surpass the maximum limit of three years or, twelve months, when the justifiable reason
invoked is Article 18º (g) of nº1.
Article 28.
Stipulation of term of less than six months
The temporary employment contract is not subject to the limits set out in Article 142.
of the Labour Code.
Article 29.
Expiry of the temporary employment contract
To the expiry of the temporary work contract the term, the provisions of the
articles 388º and 389º of the Labour Code, depending on whether it is a right or an uncertain term.
SECTION III
Contract of work for indefinite time for temporary yielding
Article 30.
Admissibility of the contract
It is permitted, pursuant to the following articles, the conclusion of contract of employment by
undetermined time for temporary ceding between the temporary working company and
the worker.
25
Article 31.
Formalities
1. From contract of employment for undetermined time to temporary ceding shall
record the following indications:
a) Acceptance expressed on the part of the employee that the temporary working company o
ceda temporarily to users;
b) Activity contracted or generic description of the functions to be exercised and qualification
proper professional, as well as the geographical area in which the worker is adstrite to
exercise duties;
c) Number and date of the alvshall of the temporary working company;
d) Minimum reciprocating limit for the cedances that come to occur, never lower than the
guaranteed minimum monthly retribution;
2. In the lack of written document or in the face of omission or insufficiency of references
required by points (a) and (b) of the preceding paragraph, it is considered that the work is provided
by the worker to the temporary working company under contract employment
no term.
3. In substitution of the provisions in the preceding paragraphs, may the employee choose, in the
thirty days after the inception of the provision of the activity to the user or the third party, by a
compensation pursuant to Article 443º of the Labour Code.
Article 32.
Period of inactivity
In periods where you do not find yourself in a temporary ceding situation, the worker
hired for indefinite time is entitled to the compensation provided for in the contract of
work or in instrument of collective work regulation, unless the
worker continue their activity in the temporary work company.
Chapter IV
Conditions of work
Article 33.
The framework of temporary workers
26
1. The worker ceded temporarily under contract of use shall not
included in the herd of the user's staff for determination of the relative obligations
to the number of employees employed, except with regard to the organization of the
safety, hygiene and health services at work and for the purpose of qualification
as a type of company.
2. The user shall include in the elaboration of the social balance sheet the information relating to the
worker who is temporarily ceded to it under the contract of use.
3. The worker in the situations referred to in the preceding paragraphs shall not be considered for
effects of the social balance sheet of the temporary working company, and should be included in the
map of the personnel framework of this, drawn up in accordance with the minister's porterie
responsible for the labour area.
Article 34.
Replacement of the temporary worker
1. Unless otherwise agreed, the termination or suspension of the contract of employment
temporary or contract for undetermined time for temporary ceding by fact
concerning the employee does not involve termination of the contract of use, owing to
temporary work company, within forty eight hours, put to the disposal
of the user another worker to replace the one whose contract has ceased or if
finds suspended.
2. Equal obligation exists for the temporary working company if, during the first
fifteen or thirty days of the employee's stay in the service of the user, depending on
the contract has duration of less than or greater than six months, this communicates
to the one who refuses the worker or whenever in disciplinary procedure check himself
the preventive suspension of the temporary worker.
Article 35.
Arrangements for the provision of work
1. During the yielding, the employee shall be subject to the working arrangements applicable to the
user with respect to the mode, place, duration of work and suspension of the provision
27
of work, safety, hygiene and health at work and access to your equipment
social.
2. The user shall inform the temporary working company and the employee about the
risks to the safety and health of the worker inherent in the outpost to which it is
affection, as well as, being a case of this, of the need for professional qualification
adequate and of specific medical surveillance.
3. The user shall draw up the working hours of the ceded worker and mark his / her
holiday period, whenever these are enjoyed in the service of that.
4. The exercise of the disciplinary power rests, during the performance of the contract, to the company of
temporary work.
5. Without prejudice to the observance of the working conditions resulting from the respective
contract, the employee may be ceded to more than one user, yet it is not
subject of contract of employment for undetermined time for temporary yielding.
Article 36.
Retribution and holiday
1. The ceded worker is entitled to earn the minimum consideration fixed in the law or
tool for collective labour regulations applicable to the user for the
professional category corresponding to the functions performed, unless another
higher is by this practicum for the performance of the same functions, always
with higher consideration of consecrated consideration in instrument of regulation
work collective applicable to the temporary working company.
2. The worker, is still entitled, in the proportion of the time of the duration of the contract of
temporary work, vacations, holiday and Christmas allowances and other subsidies
regular and periodical that by the user are due to their employees by
identical work provision.
3. The provisions of the preceding paragraph shall also apply to the temporary worker who has
carried out its activity to more than one user.
4. Temporary workers ceded to users abroad, by period
less than eight months, you are entitled to the payment of a monthly allowance for aid
cost up to the limit of 25% of the value of the base consideration.
5. The provisions of the preceding paragraph shall not apply to the owning employees of
contract of work for time indefinite for temporary yielding or contract of
28
non-term labour, to which the rules of allowance of cost aid are applicable by
travel in service, provided for in the general law.
Article 37.
Retribution for the holidays and Christmas allowance
The retribution of the holiday period and the worker's holiday and Christmas allowances
contract for undetermined time for temporary yielding are calculated on the basis of
on the average of the retributions earned in the last twelve months or in the period of execution
of the contract, if this is lower, without including the compensations referred to in Article 32 and
the corresponding periods.
Article 38.
Vocational training
1. The temporary working company may not require the temporary worker
any amount, whatever the title is, in particular by guidance services or
vocational training.
2. Without prejudice to the provision of Article 125 (7) of the Labor Code, the Company
of temporary work must carry out vocational training of the temporary worker
contracted to term whenever the duration of the contract, initial or with renovations,
exceeds three months or whenever, where there are succession of employment contracts
temporary to term, the sum of the respective durations exceeds three months in a period of
a calendar year.
3. Without prejudice to Rule 137 (2) of the Labour Code, the duration of the training
professional provided for in the preceding paragraph shall correspond to the minimum of eight hours.
4. The temporary working company shall affect the vocational training of the
temporary workers at least one per cent of their annual turnover
in this activity.
Article 39.
Available jobs
29
The user shall inform the employee ceded to the existence of outposts
available in the company or establishment for the exercise of identical functions
to those for which you were hired, with a view to your application.
Article 40.
Social security and insurance of accidents at work
1. Temporary workers are covered by the general social security scheme
of the workers on the account of outrain, competing with the temporary working company o
compliance with their respective legal obligations.
2. In the situations referred to in Article 10º, it shall be delivered by the working company
temporary a copy of the temporary employment contract at the security institution
competent social
3. The temporary working company is obliged to transfer the responsibility by
compensation due by accident at work for legally authorized companies to
carry out this insurance.
Article 41.
Structures of collective representation of workers
1. Temporary workers are considered, as far as the company is concerned
temporary work, for the purpose of implementation of the scheme concerning the structures of
collective representation of workers, where they are in question subjects
relating to the temporary working company, particularly in the constitution of the
Same.
2. Temporary workers are considered, as far as the user is concerned, to
effects of application of the regime on structures of collective representation of the
workers, where it is concerned with the user concerning the user
particularly in the constitution of them.
CHAPTER IV
Counterordinational regime
Article 42.
30
Counterordinational liability
The general scheme provided for in Articles 614º to 640º of the Labour Code applies to the
offences for violation of the licensing regimes of the working company
temporary and of the contract of use, without prejudice to the legal powers assigned,
in the Autonomous Regions, the respective regional bodies and services.
Article 43.
Counter-ordering
1. Constitui counterordinate lightweight:
a) Imputable to the temporary working company, the violation of paragraph 1 and of the points (a) and (b)
of Article 9 (2), Article 10 (3), nº2 of art.14º, points (a) and (c) to f) of the
n Article 26 (1) and paragraph 2 of Article 40º;
(b) Imputable to the user, the violation of Article 22º, nº2 of Article 33º and paragraphs 1 and 3
from article 35º;
c) Imputable to the temporary working company and to the user, the violation of points (a),
(c) and (f) of Article 20 (1);
2. Constitui counterordinance grave:
a) Imputable to the temporary working company, the violation of the paragraphs. 3, 4, 5, 6 and 7 of the
Article 6 (1) (1) (a) of Article 31º (1) (32) and of the
article 38;
(b) Imputable to the user, the violation of Article 35 (2);
3. Constitui counterordinate very serious:
a) Imputable to the temporary working company, the exercise of the yielding activity
temporary workers without a licence, or without the surety referred to in Article 6 (2),
or without the requirement of technical capacity referred to in Article 4 (4);
b) Imputable to the user, the use of a worker yielded in violation of the willing
in Article 18, the violation of Article 18 (3) and the conclusion of contract of use
of temporary work with unauthorized company.
Article 44.
Ancillary sanctions
31
1. Together with the fine, it can be punished with the interdiction or suspension of the exercise
of the respective activity the temporary working company that admits workers
with violation of the standards on minimum age and compulsory schooling.
2. The temporary working company may still be punished with the interdiction or
suspension of the exercise of the respective activity in the event of a reoccurrence in the practice of the
following offences:
a) Non-updating or non-reconstituting of the caution referred to in Article 6;
b) Non-constitution or non-reconstitution of the specific surety referred to in paragraph (a) of the
n. 1 of Article 10º;
c) Non-enrolment of temporary workers in social security;
d) Delay for a period of more than thirty days in the punctual payment of the consideration
due to temporary workers.
3. Together with the fine, it can be punished with the temporary suspension of the exercise
of the activity for a maximum period of two years the temporary working company
that does not include all workers and all the discounted walkable consideration
the social security on the monthly remuneration sheet or that violates the provisions of paragraph 1 of the
article 38 para.
4. The ancillary sanctions referred to in the preceding paragraphs are averaged in the register
referred to in Article 8.
CHAPTER V
Final and transitional provisions
Article 45.
Regularization of temporary working companies
Companies that already engage in temporary work should adapt to the
provisions set out in this Law, within a maximum of ninety days from the date
of its entry into force.
Article 46º
Elimination of certificates
32
On the date of the implementation of the measure " Strengthen channels of communication and sharing of the
public information-Elimination of the certificates ", forecast in the Simplex 2006-Program
of Administrative and Legislative Simplification, it cede to be chargeable delivery of the
certificates provided for in the nº2 of Article 5º and nº1 of Article 11º.
Article 47.
Autonomous Regions
1. In the application of this Law to the Autonomous Regions shall be taken into account
legal skills assigned to the respective regional bodies and services.
2. In The Autonomous Regions the publications are made in the respective series of the papers
officers.
Article 48.
The Repeal Standard
The Decree-Law No. 358/89 of October 17 shall be repealed with all changes in
vigour.
Article 49.
Entry into force
This Law shall come into force in the thirty days from the date of its publication.
The Deputies
