Sets The Social Protection Of Workers Who Exercise Public Functions

Original Language Title: Define a protecção social dos trabalhadores que exercem funções públicas

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Read the untranslated law here: http://app.parlamento.pt/webutils/docs/doc.pdf?path=6148523063446f764c3246795a5868774d546f334e7a67774c336470626d6c7561574e7059585270646d467a4c316776644756346447397a4c334277624449774e7931594c6d527659773d3d&fich=ppl207-X.doc&Inline=false

1 PROPOSAL of law n. º 207/X explanatory memorandum to the Portuguese Constitution enshrines the Portuguese State as a democratic constitutional State based on recognition and respect for fundamental rights. Among the cast of such rights, stand out the social, of which relates to the right to social security and solidarity, enshrined in article 63, as a right of all citizens, and the State ' organize, coordinate and subsidize a unified social security system and decentralized» with the purpose to protect ' in sickness, old age, disability and orphans, as well as unemployed and in all other situations of lack or reduction of means of subsistence or ability to work». The realization of the right to social security is effected by the Social security system, approved by law No. 4/2007, of 16 January, which defines the General bases underpinning and its objectives, in particular the implementation of this law and the promotion of social protection. The social security system – integrating the social protection system of citizenship, the insurance system and the complementary system – has a financing which meets the principles of diversification of sources and of selective adequacy, involving funds from the State budget, contributions of employees and of the contributions of employers and others. Its organizational structure includes integrated services on direct and indirect State administration, in this case, the so-called social security institutions.

2 the law holds, in your article 104 and similarity of previous laws, the existence of social protection regime of the public function, however, should pursue convergence with the schemes of the social security system by changing your rules in order to obtain the same legal discipline as regards the material scope, training rules and assignment of benefits. The right to social security of the employees of the Public Administration, provided that subject to the regime of public employment, and their families have come to be realized through a system of social protection, framing in the social security system as a special regime, the objectives of your insurance system, showing, however, features and setting own which go beyond the specific scope of social security. In fact, the so-called ' social protection regime in the civil service ' in force on 31 December 2005, comprises three distinct components-a special social security scheme, the subsystems of health and social action complement –, and the last two are real social benefits of employer-Public Administration-directed their employees and under the scope of the employment relationship. It is important to remember that, historically and as were appearing various forms of protection for workers in General, against social risks that have emerged with the evolution of society, having assumed particular importance the techniques of social security, the State was also proceeding to the creation of protection schemes for workers at your service. These protection schemes have given rise, progressively, the organisational structures which, in themselves, constitute a series of organisms with several skills, do not constitute an organic whole with integrated operation, covering different social areas that the Constitution and the law treat as distinct and fundamental rights guaranteed through separate also systems, such as 3 specifically for social security and health. Also were being created financing systems considered appropriate to each type of risk. The regulation of protection adopted techniques, which was being drafted so intrinsically linked to the employment relationship was determined more feature underlying relevant throughout the system, which is that the public servants have a special working relationship (employment) and a social security special relationship, both established on the same entity , the employer (Public Administration), unlike other workers who have an employment relationship other than social security relationship, being the first is established with the employer and the second with the social security institutions. It follows that, in much of the corresponding legislation currently applicable, there is no distinction between the two areas of competence, that is, between the benefits paid in return for the work done, in the labour law, and the social security benefits replace work income, when this is not provided, in the social security law. This situation was especially reflected in the Decree-Law No. 184/89 of 2 June, adopting a correct concept of remuneration to set the remuneration system of the civil service, confused in your art. 15 «remuneration» with «social benefits ' to include these as components of that system. On the other hand, the interim income benefits are, with the exception of pensions, achieved through the maintenance of the right to compensation, subject to the corresponding legal treatment, including the incidence of the corporate income tax. Feature, thereby, pay, which obviously does not match the consideration of work done but an effect of your do not provide, instead of a nature expressed in social provision, which actually represent. However,


inadequate legal expression 4 1 of the true nature of benefits cannot call into question the implementation of the right to protection of workers of the public administration in all eventualities from social security and through the same benefits provided for in the law. The evolution of this social protection regime was, however, over the past few decades, generating yet: new initial rules deviations, already without a coherent and comprehensive design; specifics without rationale; exceptional situations for certain professional groups or sectors; specific conditions, on the right, the same contingencies; creation of own schemes in certain organisms overlapping General schemes, cumulatively or not; in different social security schemes, the General and the Civil Service Tribunal, simultaneously or not, depending on the date of exercise of functions or the nature of the employment. Refer, in particular, some examples: – the social protection scheme initially aimed to cover State workers, civil servants subject to a regime of work of public law, was often applied to workers bound by contract of employment or for other atypical employment links; -Framing situations were created simultaneously in social protection systems with different regulations, rules and philosophies and without coordination amongst themselves, giving rise to assimilating insanáveis, with staff losses as regards the level of protection must be ensured. Are the cases: unemployment protection of primary and secondary teachers with administrative contract and the military serving under contract or voluntary service that are enrolled in the general social security scheme exclusively for the event of unemployment; officials and agents, admitted after 1 January 2006, who, as a result of the termination of the right of inscription on the CGA, are included in the General arrangements for eventualities 5 of invalidity, old age and death, including death grants and survivors ' pension and family benefits (which, on the one hand, the law applicable in the event of illness , for example, does not allow, when reached the limit of absence, any articulation with the protection on disability, among other discrepancies, and, on the other, gives rise to serious imbalances in services faced with an array of partial schemes to be applied to workers with the same legal employment situation); the application, in some services, of social protection systems arising from collective bargaining instruments, exacerbated by the livelihood in those same services, workers who are simultaneously covered by that regime and the general social security system or enrolled in CGA; -The introduction, at various times, the retirement schemes and pensions, rules that, in order to catch up with the general scheme, which follows a logical and structurally different philosophy, respecting only the part of all aspects of the regime which must converge, creating sometimes contradiction and mismatch situations or legal vacuum, insanáveis or likely to very varied interpretations and with deficient legal support; -The coexistence, in the same services, workers who exercise functions with the same type of employment or with different links and that, being subject to different social security schemes, in whole or in part, require the services to fulfill obligations, which may confront contributory if simultaneously with four or more different situations, as to the addressees, the amounts of the contributions of your part , as employers, and workers, to the contingencies to which they are intended, which implies the assumption of different responsibilities in relation to other contingencies. On the other hand, that coexistence creates unequal treatment of workers of 6 Public Administration in the field of social security, and, with the exception of the calculation of the retirement pension applicable to registered CGA until 31 August 1993, which was originally in the most favorable light and until 31 December 2005, the social protection ensured by the General system is overall more balanced more advantageous and more guarantee of effective social protection and integrated than the civil service regime, with even greater prejudice when the framing is done caught by two regimes; – Workers subject to the individual contract of work and framed in the general social security system for all contingencies regardless of the existence of the above referred to workers with the same kind of bond and covered by social protection scheme in the civil service, with inscription in CGA; -The coexistence of civil servants who, just because they are bound by different labour law regimes – employees and agents or individual contracts of employment-have or not entitled to the benefits of the health subsystems; on the other hand, workers with the same type of link (employees and agents) that have the right of way optional or obligatory, meaning such, whether or not the option to deduct 1.5% on the monthly remuneration.

Finally, it should be noted that, despite the creation of the national health service, executing the universal right to health protection of all citizens, enshrined in article 64 of the Constitution, the GYM and the other public service health subsystems, originating from the then security techniques applied, maintained a mandatory registration and payment of quota, mistaking the new reality which now constitute the maintenance of those benefits for employees , authentic health insurance like so many others, with the realization of the right to health, which, in fact, does not mean nor can mean.


7 against this picture of extreme confusion, imbalance, inconsistency and lack of transparency of the right that must be provided to employees of the public administration with regard to fundamental social rights, with the present law, for the first time since the consecration of the right of all citizens to social security and the creation of the system, define the social protection of workers who exercise public functions effectively and integrated , having regard to respect for acquired rights and in training and legal imperative the convergence of schemes. On the other hand, the new system of employment in General Government to consecrate the employment contract in public functions as rule scheme, inspired by the labour code and its rules, makes even more urgent the need for clarification of the social protection systems with a view to convergence with the general social security scheme. Thus, a distinction is made between the social benefits granted within the framework of the employment relationship, to be allocated evenly to all workers and raising of their working relationship, namely, the GYM and for health subsystems currently existing in the public administration and social action, in accordance with article 114 of law No. 12/2008 , 27 February, which established the new binding arrangements, remuneration and career. With regard to the GYM, will be in degree that any worker who performs public functions, regardless of the mode of binding, you can subscribe to this system, without prejudice to the provisions of subparagraph (c)) of article 3 and paragraph 2 of article 6 of Decree-Law No. 118/83, of 25 February, amended by Decree-Law No. 234/2005 , 30 December. On the other hand, the State, while public employer, should promote the development of policies of social benefits to their workers.

8 therefore, as a corollary of the right to social security, social protection of workers engaged in effective public functions through integration into the General system of social security of the employees or the convergent social protection scheme, that is. With the integration into the general social security system, consolidated or complete the framework of workers who, on 1 January 2006, it were entered for all eventualities and those admitted as of that date, there were attached only to the contingencies of invalidity, old age and death. Is thus to ensure the social protection of these workers through a single procedure, without prejudice to the special features relating to the event of unemployment arising from the special features of some form of legal relationship of public employment. Sets for the remaining workers a convergent social protection regime, in a coherent and balanced, effective and integrated protection of all eventualities, unequivocally framed in the social security system, with respect for its principles, concepts, objectives and conditions, as well as your specific insurance system. The convergent social protection regime, in view of the scope of personal application that is now defined, constitutes a closed regime from January 1 2006. This scheme is a legal discipline identical to that of the general regime with regard to the rules of protection in different eventualities, particularly with regard to their objects, objectives, nature, General and specific conditions, rules for calculating the amounts and other conditions for the award of benefits. However, for reasons of utilization of resources, the organisation and management model currently exists, as well as your own financing system, without prejudice, in this case, the adoption of the rules and criteria laid down in the social security framework law and supplementary legislation, in particular as regards the determination of the overall rate of 9 contributions, not, however, any increase in the rate of the levies at present applicable to workers. Finally, it is important that this law not creasing intends to implement the new regime of convergent social protection, but building the legal framework defines the new reality now created, to support the regulation to develop and which is still an instrument of the clarifier and reach, in order to support a correct interpretation and resolution of difficulties, of course, may arise during the implementation of regulatory instruments that progressively, they will be published. Also stresses the need to ensure a safe conversion of the current regime, making necessarily in stages and accompanied by an information and training as ambitious and comprehensive as possible. In summary, with the entry into force of this law, the following effects: – all workers admitted from January 1 2006 – already enrolled in social security institutions for the contingencies of invalidity, old age and death-are included in those institutions for other eventualities; – The workers admitted from the date of entry into force of this decree-law shall be entered in the general scheme of the employees for all eventualities; -The social protection regime of public service – whose convergence with the general scheme now suffers a decisive impulse – becomes a closed scheme from 1 January 2006, which partially took place with the reform of retirement schemes and the calculation of pensions. Were heard the Government organs of the autonomous regions, the National Association of Portuguese municipalities and the National Association of Parishes. The procedures were observed as a result of law No. 23/98 of 26 May.

10 like this: under d) of paragraph 1 of article 197 of the Constitution, the Government presents to the Assembly of the Republic the following Bill: chapter I General provisions section I subject-matter and scope Article 1 subject-matter this law defines the social protection of workers performing public functions.


Article 2 in the Framework of social security system, the social protection of workers who exercise public functions falls within the social security system, approved by the law of Social Security, hereinafter referred to as law. Article 3 subjective scope 1-application this Act applies to all workers who carry out public functions, regardless of the binding mode and formation of the legal relationship of public employment under which they exercise their functions.

11 2-this law applies even to workers referred to in the preceding paragraph that, under instruments of mobility, not play public functions, but that, in accordance with law, maintain their social protection regime. Article 4 Scope of application 1-objective this law shall apply to the direct and indirect administration services of the State, the autonomous regional administration and the municipal administration. 2. this law shall also apply to agencies and support services of the President of the Republic, the Parliament, the courts and the public prosecutor and their respective management agencies and other independent bodies. 3. this law applies even to other entities not provided for in the preceding paragraphs that have the service workers referred to in your previous article.

Article 5 employers for the purposes of this law, the bodies, offices and other entities referred to in the preceding article are considered employers. Section II Implementation of social protection article 6 social protection schemes for the social protection of workers performing public functions is by integration: 12) in the General system of social security of the employees, hereinafter referred to as the General system of social security; (b)) in the convergent social protection regime, defined by this law, which is part of the workers in an organization and financing system, with all contingencies, regulations regarding the material scope, training rules and rights of attribution of benefits, including the calculation of amounts, in convergence with the general social security scheme. Chapter II integration into the general social security scheme article 7 personal are integrated into the general social security system: a) workers holding legal relationship of public job, regardless of the mode of binding, constituted from 1 January 2006; (b)) other workers who hold employment legal relationship established until 31 December 2005 with the employer, framed in the general social security scheme.

13 Article 8 to the general social security scheme provided for in article previous workers and their employers are required to join the social security institutions on the quality of beneficiaries and taxpayers, respectively. Article 9 contributory Obligations beneficiaries and taxpayers are subject to the obligations under the contributory base law and other applicable law. Article 10 Protection of work 1-Without prejudice to the provisions of the following paragraph, the protection in the event of unemployment of workers performing public functions, subject to the conditions referred to in article 10 of law No 12-A/2008, of 27 February, is carried out in accordance with the general social security scheme. 2-the amount of social benefits in the event of unemployment is paid by employers, in accordance with the rules provided for in article 29 3-the preceding paragraphs shall apply to workers referred to in paragraph 4 of article 88 of the law No 12-A/2008, of 27 February, whose employment legal relationship was established from 1 January 2006.

14 Chapter III social protection Regime convergent section I General provisions article 11 personal the convergent social protection scheme applies to workers who are holders of legal relationship of public job, regardless of the mode of binding, constituted up to 31 December 2005 and which are not covered by the provisions of subparagraph (b)) article 7 article 12 1 Goals-the convergent social protection scheme achieved the objectives of insurance system through cash benefits instead of lost income, which take on the nature of social benefits. 2-the convergent social protection regime applies yet the solidarity subsystem's objectives relating to social or economic compensation, as a result of shortcomings or equivalent or contributory features by system weaknesses.

15 article 13 Scope material the convergent social protection scheme integrates the eventualities provided for in the system by, in particular: (a)); b) maternity, paternity and adoption; c) Unemployment; d) accidents at work and occupational diseases; e) invalidity benefits; f) old age; g) Death. Article 14 Concepts for the purposes of this chapter and chapters IV and V of this law and its regulation, the following definitions shall apply: a) «contributory career», the corresponding time periods: i) the entry of contributions or situation legally equated; II) the equivalence to the contributions; b) ' at the entrance of Equivalence ' contributions, periods of time, there is no provision of effective work for occurrence of contingencies referred to in article 13, is not because of the payment of contributions for compensation and that, or not right to attribution of corresponding benefits under the law, are recorded for the purposes of contributory career, as well as other situations


16 provided for by law; c) "warranty period" means a period of contributions or situation legally equated that constitutes general condition of attribution of benefits; d) "social protection scheme in the civil service ' social protection in force on 31 December 2005, applicable to officials and other servants and other employees of the Public Administration, made up of the components of the special social security schemes, health subsystems and complementary social action; e) ' pay ' reference, the average value of remuneration recorded during a certain period of time, variable according to the rules of each event, which is the basis of calculation of their benefits; f) «Situation legally considered the input of contributions», Office equated the contributory career with regard to contingencies that do not require the payment of contributions; g) ' aggregation of periods ' means contribution solution used on links between social protection schemes, which translates that contributory periods or equivalent situation verified relevant in another scheme for the opening of the right to protection, in particular the fulfilment of warranty period for the calculation of the value of benefits; h) ' effective work», the work really provided by the employers. Article 15 beneficiaries and taxpayers 1-the following shall be considered as beneficiaries and taxpayers of the convergent social protection regime, respectively, the workers referred to in article 11 and the corresponding entities 17 employers. 2-the workers referred to in the preceding paragraph to see changed your legal relationship of public employment, in particular by changing the binding mode or by application of mobility instruments, do not lose the quality of beneficiaries of social protection regime converge. Article 16 contributory Nature 1-for the purposes of entitlement to social benefits relating to eventualities referred to in (a)), b), c) and (d)) of article 13, the exercise of functions of workers shall be treated as contributory career. 2-the right to social benefits of the eventuality referred to in points (a) and), f) and (g)) of article 13, depends on the payment to the Caixa Geral de Aposentações (CGA) of contributions by beneficiaries, and of contributions by the taxpayer. 3-the lack of payment of contributions and contributions concerning the exercise periods of professional activity of the beneficiaries not on their part, shall not affect the right at social benefits referred to in the preceding paragraph. Section II classification system by article 17 1-Principles of convergent social protection shall apply the General principles contained in the framework law. 2-the convergent social protection still apply the principles and other provisions relating to the system by, inter alia, constants of chapters III, IV and VI of law No. 4/2007, of 16 January, subject to the necessary adaptations arising from your organization and 18 system of financing own.

Section III Benefits article 18 1-nature of the benefits social benefits are payable, administrative and judicially, with identical to the benefits under the general scheme of social security. 2-social benefits are not considered, in any cases, as remuneration. Article 19 Equivalence to the contributions and contributions the periods for which there is no provision of effective work, as provided for in this Act and other applicable legislation, as well as the corresponding to other situations provided for by law, shall be deemed equivalent to the contributions and contributions to the CGA, with no place for the payment of the same. Article 20 third party liability When the beneficiary of the convergent social protection scheme has received, how injured, by the same fact, social benefits and compensation supported by third parties, the employers exert the right of return with reimbursement up to a maximum of the value of benefits for which they are responsible, without prejudice to the provisions of article 70 of law No. 4/2007 , 16 January.

19 section IV Organization and financing article 21 Responsibilities for managing 1-Without prejudice to the provisions of the following paragraph, the assignment and payment of social benefits relating to eventualities provided for in (a)), b), c) and (d)) of article 13 are the direct responsibility of employers. 2-the allocation and payment of social benefits relating to eventualities provided for in points (a) and), f) and (g)) of article 13, are the responsibility of the CGA, as well as benefits for permanent disability and death resulting from accidents at work and occupational diseases. 3-employers reimburse the CGA still charges for this supported with regard to social benefits referred to at the end of the preceding paragraph. Article 22 1-Financing social benefits relating to eventualities provided for in (a)), b), c) and (d)) of article 13 are employers ' charges. 2-social benefits relating to eventualities provided for in points (a) and), f) and (g)) of article 13 are funded through contributions of workers and of employers ' contributions. 3-the lack of benefits instead of income or the contributory career of the beneficiaries, relating to eventualities referred to in the preceding paragraphs, is financed by transfers from the State budget.


20 4-Are still source of financing of the social protection regime, other revenues legally provided for convergent. Article 23 determining the amount of the levies and contributions 1-the amounts of the levies and contributions provided for in paragraph 2 of the preceding article, resulting from the application of the rates on the salaries that constitute contributory base. 2-salaries and fees provided for in the preceding paragraph are defined by Ordinance in convergence with the criteria of the general social security scheme. Chapter IV design and coordination of social protection article 24 1-design and coordination the coordination of the application of the social protection of workers performing public functions, especially the convergent social protection scheme, it is the responsibility of the members of the Government responsible for the areas of Public Administration, finance and social security. 2-the Directorate-General for employment and Public Administration (DGAEP), in relation to the convergent social protection scheme: a) the technical support to the design and coordination, in conjunction with the persons responsible for its management; b) articulation with the services responsible for international coordination on social security. 3-for the purposes of compliance with the legal obligations relating to the obtaining and making available 21 data concerning social protection, the DGAEP articulates with the competent services.

Article 25 the National Council of Social Security 1-Public Administration, acting as employer, part of the National Social Security Council, laid down in article 95 of law No. 4/2007, of 16 January. 2-for the purposes of the preceding paragraph the name of representative for the Member of Government responsible for public administration. Chapter V supplementary provisions, transitional and final article 26 occupational accidents 1-the legal framework of the protection of the accidents at work of all employees covered by this law is set out in Decree-law. 2-the decree-law referred to in the preceding paragraph welcomes the principles and rights enshrined in the general law, adapting them to the specificities of public administration, setting the terms of the employer's liability for compensation for damage arising from accidents at work, moving away from the principle of the obligation to transfer your. 3-The workers who, under the mobility instruments, will provide service to the entities referred to in paragraph 3 of article 4, shall apply the general law. Article 27 1-rights Safeguards in situations where there is provision of effective work, arising from contingencies referred to in (a)), b) and (d)) of article 13, regardless of the system of social protection, 22 the absence of remuneration does not determine the loss or injury of any rights and benefits under enshrined in law. 2-the provisions of this law shall be without prejudice to the regimes of the social benefits enjoyed by workers, especially in the field of health and social action. Article 28 supplementary law to the social protection regime in the law is convergent. Article 29 1 Regulations-the regulations of the eventualities provided for in article 13, the convergent social protection scheme, is done by Ordinance, in accordance with the principles, concepts, and general conditions of the social security system and your specific insurance system. 2-the regulation, referred to in the preceding paragraph, includes the definition of the object, purpose, nature, General and special rules of calculation of amounts and other conditions for the award of benefits that efectivam the right to protection in all eventualities, referred to in article 13, identically to the applicable legislation on the general scheme, without prejudice to the special features arising from organization and system of financing social protection scheme itself convergent. 3-the rules of the scheme referred to in the preceding paragraphs in respect of financing rules, in particular as regards the determination of the overall rate of contributions, follows the criteria set out in the framework law and supplementary law. 4-the regulation referred to in paragraph 2 provides that, if, in specific cases and in any eventuality, of her work below the level of protection ensured by the system of social protection of civil service 23 previously in force, it is maintained that level of protection, through the allocation of social benefits by the employer. 5-until the beginning of the validity of the regulations provided for in this article shall remain in force, the legal and regulatory regimes governing the various eventualities convergent social protection scheme. Article 30 transitional provisions 1-workers covered by social protection scheme in the civil service at the date of entry into force of this Act and the Act on entities referred to in paragraph 3 of article 4, the convergent social protection regime. 2-the workers referred to in article 7 (a)), whose legal relationship of employment have been lodged between 1 January 2006 and the date of entry into force referred to in paragraph 1 of article 32 shall apply the regime contained in Decree-Law No. 117/2006, of 20 June, if any eventualities of sickness, maternity, paternity and adoption , unemployment and occupational disease, where necessary. Article 31 Rule set 1-without prejudice to the provisions of the following paragraph are hereby repealed articles 9 and 10 of law No. 11/2008, 20 February. 2-the withdrawal provided for in paragraph 1 shall take effect only as from the entry into force of the regulation in the event of unemployment, the social protection regime converge. 3-is extended the term of article 10 of law No. 11/2008, 20 February, until the date of entry into force of the regulation referred to in the preceding paragraph.

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4-the diplomas that regulate, in convergent social protection scheme, the eventualities provided for in article 13, shall repeal of all rules that conflict with the provisions of this law. Article 32 entry into force 1-Without prejudice to the following paragraphs, this law shall enter into force on the date of entry into force of the regime of employment contract in public functions referred to in article 87 of the law No 12-A/2008, of 27 February. 2-Chapter III shall enter into force, with respect to each of the categories referred to in article 13, the date of beginning of validity of Decree-Law undertaking the your regulations. 3-articles 19, 29 and 31 shall enter into force on the day following publication of this law.

Seen and approved by the Council of Ministers of 29 May 2008 Prime Minister the Minister of Parliamentary Affairs Minister Presidency