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The Second Amendment Of Law No 4/2008 Of 7 February, Which Approves The Regime Of Employment Contracts Of Professional Shows And Sets The Social Security Regime Applicable To These Professionals

Original Language Title: Procede à segunda alteração à Lei n.º 4/2008, de 7 de Fevereiro, que aprova o regime dos contratos de trabalho dos profissionais de espectáculos e estabelece o regime de segurança social aplicável a estes profissionais

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PORTUGUESE COMMUNIST PARTY

Parliamentary Group

1

Draft Law No 247 /XI/1ª

Defines the applicable socio-professional regime

to workers in the performing arts and audiovisual media

Exhibition of reasons

The situation of labour and social disprotection of the workers of the arts

spectacle was the subject of a legislative procedure in the X Legislature triggered by the

Parliamentary group of the CFP and which culminated in the passage of Law No. 4/2008, 7 of

February, solely with the favorable votes of the ER.

For that process contributed the CFP with the Draft Law No 324 /X, whose

proposals were fully rejected by the absolute majority of which PS then

disposed in the Assembly of the Republic.

As the CFP then cautioned, the law passed on nothing solved the problems

felt by the workers of the performing arts, having even created difficulties

previously unexisting.

Subsequently, in the face of the lack of regulation of the matter concerning the

social protection of these workers, the PCP presented the Draft Law No 650 /X which

defined a protection regime appropriate to the specificities of its activities

professionals, particularly the intermittance that characterizes them.

PORTUGUESE COMMUNIST PARTY

Parliamentary Group

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Considering that the situation is today in everything identical to the one that lived a year ago,

the CFP presents two new legislative initiatives, one aimed at defining the partner regime-

professional applicable to employees of the performing arts and audiovisual media, another

establishing the social protection regime of these workers.

The present legislative initiative aims at precisely the definition of the legal regime

applicable to employees of the performing arts with respect to access, certification

and professional qualification and labour relations.

The CFP retains the consideration that the essential issue is the consecration of the

contract of employment as a rule of contracting in the arts sector of the

spectacle, whenever there are subordinate working relationships or relations of

professional exercise that, by its integration into an organizational structure, if

characterize the economic dependence of the provider of the work on the face of the entity

employing.

It is established that any production of a professional nature should include a

minimum percentage of contract professionals not less than 70%, safeguarded the

situations in which the nature of the production does not allow the application of that rule to be

artistic professions.

Monitoring of compliance with the contracting rules requires the creation of a registration

from professionals of the performing arts to the Ministry of Labour, to where the

promoter entities of individual shows and content must send copy of the

labor contracts of the workers that integrate. Such compulsion will implicate the

need for the written reduction of the contracts of employment concluded, without prejudice to the

presumption of the existence of contract of employment, regardless of the form, to

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Parliamentary Group

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defence of the worker, whenever this is inserted in the organisational structure and if

find in a situation of economic dependence in the face of the employer.

The existence of a professional reconversion process is further envisaged, the

develop whenever the worker sees himself unable to develop his or her

professional activity as a result of the wear imposed by the same.

In these situations, particularly evident in the case of the dancers, the answer does not

may be the expiry of the employment contracts and the consequent unemployment, as if

establishes in Article 19 of Law No 4/2008.

For the CFP, the solution to be defined should be a solution that, on the one hand, guarantees the

maintenance of the job posting and the rights of the worker and on the other, allow the

taking advantage of your professional experience for the benefit of the same organisation but

in another functional framework.

Out of the present Draft Law stay many subjects certainly important

for the workers of the performing arts and audiovisual media, specifically in

tax matter or in specific subjects of some subsectors, the consideration of which shall

however it is realized in the seat of budget debate.

Noted the failure of Law No. 4/2008, the central objective of this bill is

to address the aspects of the socio-professional status of workers in the arts of the

spectacle and audiovisual that penalizes them in relation to the remaining workers by

inexistence or unsuitability of specific legislation that takes into account intermittency

and the precariousness of its activities.

PORTUGUESE COMMUNIST PARTY

Parliamentary Group

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In these terms, under the applicable legal and regimental provisions, the

Undersigned deputies of the CFP Parliamentary Group present the following

Draft Law:

Article 1.

Subject

This Law sets out the legal regime applicable to workers of the arts of the

spectacle and audiovisual with regard to:

a) access, certification and professional qualification;

b) labour relations;

c) professional conversion.

Article 2.

Definition

For the purposes of this Law shall be understood by:

a) Spectacle-the whole public presentation of artistic manifestations intended

to the fruition by the public of activities connected to the creation, execution and interpretation,

that involves one or several artistic areas and the performance of "live" interpreters

in technically prepared physical spaces for the specificity of each

production;

(b) Audiovisual-all the communication product expressed with the joint use

of visual and sound components that involves one or several artistic areas

linked to the creation, execution and interpretation and which is intended for fruition by the

public through the Cinema, Video, Television, Radio or Multimedia.

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Parliamentary Group

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c) Professions of a strictly artistic nature-professions linked to creation,

execution and interpretation of works;

d) Professions of a technical-artistic nature-professions connected to the materials,

equipment and productive processes;

e) Professions of mediation-professions related to the organisation, management and the

sale of goods and services, with the valorisation, dissemination and classification of the works

and of the artists, as well as with the pedagogy of the arts and cultural animation and

urban.

Article 3.

Material scope

1-The regime defined in this Law shall apply to the artistic, technical-artistic professions and

of mediation of the performing arts and audiovisual media which constitute modalities of

organized subordinate work, in time and in space, according to programming

artistic, production and public presentation of the spectacles.

2-The provisions of the preceding paragraph shall not exclude from the scope of this Law the

professions that, although they are characterised by independent working regimes, if

find inserted, in the concrete case, in professional exercise relationships which, by their

integration into an organizational structure, if they are characterised by economic dependence

of the provider of the work in the face of the employing entity.

Article 4.

Personal scope

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1-A This Law shall apply to the professionals and trainees of the performing arts and the

audiovisual.

2-For the purposes of this Law, the individuals who are deemed to be professional shall be considered

dedicate your time, exclusive or predominantly, to the exercise of an activity

linked to the performing arts and audiovisual media, or from which to depend on their livelihood.

3-A This Law shall apply to employees of the performing arts and audiovisual media

who find themselves in individual employment contract arrangements, without prejudice to the scheme

more favourable arising from special law or instrument of collective regulation which

be applicable to them.

Article 5.

Access to professions

They consider themselves professionals of the performing arts and audio-visual arts for the purpose of the

application of the specific scheme provided for in this Law:

a) Higher course or professional course certificate holders

for the exercise of profession within the scope of the performing arts that are

officially recognized or certified in the terms applicable to the respective

degrees of education or training.

b) Citizens who have exercised profession within the field of performing arts and

of the audiovisual in an exclusive or predominant manner, or of which it has depended on

their livelihood, for more than a year;

c) Citizens who have exercised profession in the field of performing arts and

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Parliamentary Group

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of the audiovisual for a minimum period of 240 days in the last year;

Article 6.

Trainees

For the purposes of this Law, interns shall be deemed to be the citizens who exercise

profession within the field of performing arts without complying with the requirements provided for in the

previous article.

Article 7.

Rules of hiring

1-The number of professionals hired for any production of nature

professional cannot be less than 70% of the total number of employees of each

of the occupations involved.

2-The scheme established in the preceding paragraph may not be applied to the professions

artistic when the nature of the production thus requires it.

3-The promoter entities of spectacle and audiovisual content of nature

professional must send to the Ministry of Labour and Solidarity a relationship of the

workers involved in each production, gathering copy of the respective contracts of

work, and, where appropriate, the rationale for the use of the faculty provided for in paragraph 2.

Article 8.

Registration

1-A proof of the quality of worker of the performing arts and audiovisual media

takes place upon enrolment in own existing registration at the Ministry of Labour and

Solidarity.

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Parliamentary Group

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2-A registration in the register is mandatory for all professionals in the performing arts

and of the audiovisual and confers a professional title issued by the Ministry of Labour and

Solidarity.

3-Registration takes place upon presentation of diploma, contract of employment or

another means of proof of the exercise of profession within the performing arts and the

audiovisual.

Article 9.

Contract of work

It is presumed that the parties have entered into a contract of employment whenever the worker

be inserted into the organisational structure and find itself in a situation of dependence

economic vis-à-vis the promoter entity of the show.

Article 10.

Duration and organization of working time

The employment contracts concluded within the framework of the performing arts and audiovisual media

may provide for specific regimens of duration and organisation of working time, having

into account the specific nature of the production in question, provided that in the period of duration

of the contract is respected the maximum average length limit of the weekly work of 40

hours.

Article 11.

Retribution

1-It is considered retribution all that what the worker is entitled to as

counterpart to your work.

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Parliamentary Group

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2-In the consideration of the work includes the base consideration and all the benefits made,

directly or indirectly, in cash or in kind.

3-Presume-if it constitutes retribution all and any provision of the employer

to the worker.

Article 12.

Professional conversion

1-Where the employee is not able to continue to carry out his or her professional activity

by reason related to the resulting wear and wear resulting from the profession is promoted a

process of professional reconversion.

2-Of the professional conversion may not result in diminishing rights for the

worker.

3-The process of vocational reconversion is defined in a conversion plan, the

establish by agreement between the employer and the employee, represented or not

by the respective union, containing the terms of the conversion, specifically:

a) the confirmation of the impossibility of performance of the professional activity which

vine being performed for reason arising from the wear of the own that of the

same results;

b) the option, duly substantiated, in relation to the profession for performance

of which the worker is to be reconverted;

c) the needs of vocational, academic or other training identified

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Parliamentary Group

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as indispensable to conversion;

d) the definition of the timetable for the realization of the various steps of the plan of

conversion.

4-The charges arising from the professional reconversion are borne by the entity

employer.

Article 13.

Subsidiary law

The cases missing in this diploma apply in supplement, the standards of the

general legislation that regulates labour relations.

Article 14.

Abrogation standard

It is repealed the Act No 4/2008 of February 7.

Article 15º

Entry into force

This Law shall come into force 30 days after its publication.

Assembly of the Republic, April 29, 2010

The Deputies,

JOÃO OLIVEIRA; BERNARDINO SOARES