racts and hierarchy of sources. Bruno Mestre, researcher at the European University Institute of Florence, details the changes introduced by this new code. (Ref. 090227)
The
attached note gives a more legible version of the text below.
The legislative procedure for
the reform of the labor market has finally come to an end after several months
bargaining with the social partners (see
our dispatch No.
080538) and overcoming a blockage from the Constitutional Court, who
refused to accept a provision that increased the trial period to 180 days (see
our dispatch No.
090011). Portugal now has a new Labor Code and the modifications
introduced are expected to have a wide reaching impact in the life of persons
and companies (see
our dispatch No.
090187).
Hierarchy
of sources. The
first great modification in the labor code concerns the relation between the different
sources of law. The traditional relationship between statute and collective
agreements enforced in Portugal between 1969 and 2003 was in accordance with
the principe de faveur. the statute
laid down a minimum applicable to all workers that the collective agreements
could only improve. In 2003 (the year of the first great reform of the labor
market) the Labor Code introduced a revolution to this system allowing
collective agreements to deviate either in a more favorable or more detrimental
way unless the law, by nature, opposed to such a modification. This raised
interpretative difficulties because the legal thinking and the courts could not
agree to which extent legal rules could be modified by collective agreements.
The law maker decided to provide an answer to these difficulties and introduced
a new number to art.3 of the Labor Code – which lays down the hierarchy of
sources – which enumerates a number of subjects that may only be modified in a
more favorable way to the employee. These subjects are: (1) personality rights,
equality and non-discrimination; (2) parental protection; (3) underage work;
(4) handicapped workers; (5) working students; (6) employer’s duty of information;
(7) limits to the duration of daily and weekly working time; (8) minimum
duration of rest-periods (including paid annual leave); (9) maximum duration of
night work; (10) performance and guarantee of remunerations; (11) prevention
and compensation of industrial accidents and occupational diseases; (12) transfer of
undertakings; (13) rights of employee representatives.