The work world is - always has been - mutating. As such, can we take for granted the knowledge that we have of the laws that govern it? Should we be aware of labor law and court responses, or is it enough for us to have an efficient dose of common sense? In this article, I leave the answer to 20 of the most common legal labor questions in the corporate world.
Article by David Carvalho Martins | Reading time 9 minutes
Since the Industrial Revolution, Labor Law has been challenged and stimulated by social reality, having successfully overcome the emerging challenges of the advent of machines and new technologies. More recently, digitization, automation, decentralization, relocation, dematerialization and artificial intelligence have resurfaced the discussion on the need for a branch of law dedicated to the (re) balance of employer-worker relations.
Today as before: does Labor Law have its days counted? In an extreme scenario of total replacement of people by machines, labor law would (probably) no longer exist. We don’t think that this hypothesis arises for at least in the next few years. However, labor relations are undergoing significant changes that cannot be ignored.
Some professions may significantly change, and others may even disappear. However, new professions are also emerging, such as the data protection officer. Besides, we must deal with the constant change - or instability - of labor law. In about 15 years, we had the 2003 Labor Code with 4 amendments, and the 2009 Labor Code with 13 amendments, without prejudice to others that have been announced by the Government and the parties that support the current parliamentary majority.
With this background, it is important to know if we acknowledge the answers to the main labor issues, namely:
1. Is there a collective bargaining agreement applicable to my industry or company?
Since April 16, 2018, DGERT – Direção-Geral do Emprego e das Relações do Trabalho [Directorate-General for Employment and Labor Relations] has made available a tool for researching collective bargaining agreements.
Nevertheless, employers and workers should check whether collective bargaining agreements are (effectively) applicable to the particular case, under the affiliation principle, through the legally provided mechanisms for extending their application scope or taking into account rules of overlapping and competition for collective bargaining agreements.
2. What is the difference between an employment contract and a service contract?
An employment contract is that whereby an individual undertakes, by retribution, to perform his activity to another or other persons, within the scope of their organization and under their authority. On the other hand, the service contract may be concluded by an individual or collective person, who performs his activity autonomously and independently.
Still, this is one of the most controversial issues. For the doubtful cases clarification, we may appeal, for example, to the presumption of labor: the existence of a contract of employment is presumed when, in the relationship between the person performing an activity and another or others who benefit from it, some of the following features:
(i) the activity is carried out in a place belonging to or determined by the beneficiary;
(ii) the equipment and work tools used to belong to the beneficiary of the activity;
(iii) the activity provider observes the start and end times of the service, determined by the beneficiary of the activity;
(iv) a certain amount is paid, at certain periodicity, to the activity provider as consideration for it;
(v) the activity provider performs direction or leadership roles in the organic structure of the company.
3. When can I use the fixed-term or temporary employment contract?
The permanent employment contract and the temporary employment contract must be in writing and may only be celebrated to satisfy the temporary need of the enterprise and for the period strictly necessary to meet that need.
4. Which are the risks associated with the misuse of a service contract, a fixed-term contract or a temporary employment contract?
Improper use of a service contract, a fixed-term contract or a temporary employment contract leads, namely, to its conversion into an indefinite employment contract.
5. Which are the labor responses to the digital economy? Is it a land free of labor concerns?
The digital economy may push the boundaries of labor law, but it isn’t land free of labor concerns. Indeed, the courts in many countries have found that the provision of activity through platforms may be labor based. On the other hand, several problems arise concerning the safety and health of workers, the use of social networks and the safeguarding of workers' privacy.
6. What should I do to protect the privacy and personal data in my organization?
With the entry into of the General Data Protection Regulation, companies should firstly undertake an internal audit aimed at identifying the personal data to which they have access to and, at the same time, defining a strategy aimed at protecting and safeguarding it.
7. Should my company designate a data protection officer? Can it be an employee? Must be a service provider?
The answer to the first question will depend on the type of company and the activity pursued. The legal framework of the data protection officer has raised many doubts and therefore the solution will depend on each case circumstance.
8. Can the employer freely decide on the activity to be performed by the worker? Which are the limits?
The employer has the management power to carry out the activity hired during the performance of the employment contract. However, it must take into account the rights and guarantees attributed to workers related, in particular, to the professional category and the technical and scientific autonomy.
9. Which are the consequences of not following an order? What can the employer do? How can the worker react to the employer's performance?
In certain cases, workers may refuse to comply with an employer order. However, it is a decision that must be taken due consideration, because the employer may pursue disciplinary proceedings with or without intention to dismiss for a good cause.
In these situations, the worker may seek the support of a trade union and/or lawyer, as well as the Authority for Working Conditions or the Courts.
10. What is the difference between harassment and labor conflict?
Harassment can be moral or sexual. The first is unwanted behavior, namely that based on a discriminatory factor, which occurs when accessing employment or one's job, work or professional training. The second is based on unwanted sexual behavior in verbal, non-verbal or physical form. Both should have the purpose or effect of disturbing or embarrassing a person, affecting his or her dignity, or creating an intimidating, hostile, degrading humiliating or destabilizing environment. In other cases, we can speak of “mere” labor conflicts, which also deserve the protection of the law, depending on the circumstances of the specific case.
11. What should the employer do in a worker harassment situation or promoted by a third party (eg customer or supplier)?
Companies with seven or more workers should adopt codes of good conduct to prevent and combat workplace harassment. In any case, whenever the employer becomes aware of facts that may constitute a harassment situation, he should at least initiate an internal investigation procedure to ascertain, even if on an indicative basis, its existence or truth. Subsequently, the employer should take the necessary measures to eliminate the harassment situation.
12. How can the employer protect confidential information, know-how, and business secrets?
The employer should combine legal, technological and procedural mechanisms. Legal mechanisms include the elaboration of confidentiality, secrecy, non-compete or permanence clauses.
13. How can the workplace be changed? Can the employer be required to change the workplace at the worker's request?
The workplace may be changed temporarily or permanently, by order of the employer or, in the case of domestic violence, at the worker’s request. In the first case, the employer must comply with a legally prescribed procedure, which imposes the obligation to state reasons and to observe notice. In the second case, the employer may only postpone the transfer based on overriding requirements relating to the operation of the undertaking or service, or until compatible employment is available, without prejudice to the worker's right to suspend performance of the employment contract.
14. Which are the mechanisms for personal and professional life conciliation? Can the worker impose changes in the work organization?
In addition to the parenting protection regime, we can refer to the mechanisms of adaptability or adjustment of working time - for example, the time bank - as well as the provision of non-working hours, time working part-time or teleworking. These instruments produce changes in a business organization that must be anticipated and regulated.
15. What is a work accident? Which are the behaviors that should be taken by the company in an (apparent) work accident situation?
As a rule, it is a work accident that that occurs at the place and time of work and directly or indirectly causes bodily injury, functional disturbance or illness resulting in reduced working capacity or gain or death. However, traffic accidents should also be considered, for example.
An employer who has transferred liability for an accident at work to an insurer shall, under penalty of liability for loss and damage, report to the insurer the occurrence of the accident within twenty-four hours from the date of knowledge.
16. Which are the modalities of employment termination?
The employment contract may terminate in particularly on:
(i) expiriency;
(ii) revocation (agreement between employer and worker);
(iii) dismissal for fact attributable to the worker (just disciplinary cause);
(iv) collective dismissal;
(v) dismissal for termination of employment;
(vi) dismissal for inadequacy;
(vii) resolution by the worker (with just cause);
(viii) termination by the worker, with or without notice.
17. Which are the risks associated with failure to comply with the legally prescribed procedure for employment termination?
The employer's declaration of unlawfulness in terminating the employment contract entitles the worker, namely, to be reinstated (or to receive, in the alternative, seniority compensation) and to receive the so-called 'interim wages', ie those that are due pending the dismissal action.
On the other hand, a worker who does not comply with the legally prescribed procedure may be required to compensate the employer.
18. What is a multi-employer employment contract?
The worker may be required to work for several employers, including a corporate relationship with reciprocal, domain or group interests, or who have common organizational structures (eg sharing an office).
This employment contract must be reduced to writing and contain:
(i) the identification, signatures, and domicile or registered office of the parties;
(ii) an indication of the worker's activity, place and normal working period;
(iii) the indication of the employer who represents the others in the fulfillment of duties and the exercise of rights arising from the employment contract.
19. Which are the occupational risks associated with outsourcing, buying and selling companies?
Among other issues, outsourcing, buying and selling companies must take into account the establishment transfer regime, which requires the maintenance of workers who perform their activities in the company, establishment or business unit transmitted. The new employer may be required to take on a set of workers he didn’t choose and whose working conditions were determined by the previous employer. The occupational risks associated with the establishment transfer are often identified in audits carried out before the business.
20. Should I set up a workers' commission?
Workers have the right to create, in each company, a workers' commission to defend their interests and exercise the rights provided for in the Constitution and the law. On the contrary, the employer cannot oppose or condition the lawful exercise of this right of workers.
Warning:
All these questions (and answers) must be reviewed and re-weighed in the light of the circumstances of the case. Decision-making based on guidelines or generic information leads to uncertainties and insecurities that should be avoided.
