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Il regime dei lavoratori distaccati in Portogallo (dopo la direttiva 2018/957/UE)

António C. da Frada de Sousa, Professore ordinario di Diritto internazionale privato e di Diritto dell’Unione europea, Universidad Católica Portuguesa – Milena da Silva Rouxinol, Professoressa ordinaria di Diritto del lavoro, Universidad Católica Portuguesa

Questo articolo descrive le condizioni di attuazione, in Portogallo, delle direttive UE sul distacco dei lavoratori. Evidenzia le specificità del regime portoghese in materia e sottolinea i casi di recepimento non corretto di tali direttive, in particolare della direttiva 2018/957.

Parole chiave: Distacco dei lavoratori; direttive europee; codice del lavoro portoghese – legge 29/2017 – decreto legge 101-E/2020 – disposizioni obbligatorie – contratti collettivi – sicurezza del lavoro – retribuzione – distacco di lunga durata – lavoratori temporanei.

The Posted Workers’ Regime in Portugal (after Directive 2018/957/EU)

This article describes the terms of implementation, in Portugal, of the EU Directives concerning posting of workers. It points out the specificities of the Portuguese regime on this subject and underlines cases of incorrect transposition of such Directives, namely the Directive 2018/957.

Keywords: Posting of workers – European Directives – Portuguese Labour Code – Act 29/2017 – Decree-Law 101-E/2020 – mandatory provisions – collective agreements; job security – remuneration – long duration posting – temporary agency workers.

Sommario:

1. Introduction - 2. The transposition, in Portugal, of the EU Directives on posted workers - 3. Scope of application of the Portuguese legal framework on posted workers implementing Directive 96/71 - 3.2. The territorial scope of application of the posted workers Portuguese regime - 4. Terms and conditions of employment applicable to posted workers - 4.1. Collective agreements with erga omnes effects in Portugal? - 4.2. Principle of application of the most favourable law - 4.3. Terms and conditions of employment applicable to posted workers according to the PLC – the problem of “remuneration” - 4.4. The inclusion of provisions concerning “job security” among the terms and conditions applicable to posted workers – a Portuguese peculiarity - 4.5. New terms and conditions mandatorily applicable to posted workers after Directive 2018/957 - 5. Long duration posting – implementation of new article 3(1a) of Directive 96/71 - 6. Temporary agency workers hired-out by temporary work agencies as provided by new article 3(1b) of Directive 96/71 - 7. The transposition of Directive 2014/67/EU (after Directive 2018/957) - 8. Conclusion - NOTE


1. Introduction

More than a State of destination for workers posted by service providers from other States, Portugal has been typically a State of origin of workers posted abroad by Portuguese undertakings directing their provision of services to other States [1]. In effect, Portugal has been, for decades, a State with a traditionally large number of service providers directing their services to beneficiaries/clients located abroad. The Portuguese building industry is one good example of this. The European Union (EU) internal market, in particular, has always been regarded as offering a good opportunity for Portuguese undertakings to expand their economic activities by providing their services to clients in other Members States (MS/MSs). Such services are often provided with the use of employees which habitually perform their work in their employers’ premises, in Portugal. Such employees have, therefore, their individual employment contracts subject to Portuguese law, according to article 8(1) and (2) of the Rome I Regulation, on the law applicable to contractual obligations. This will be so, even if the employer provides its services in another MS of the EU with temporary secondment (posting) of its employees in that MS. It is well known, however, that the posting of workers poses significant challenges and difficulties, in particular as regards the finding of the provisions which, in the MS of destination, shall be mandatorily respected by foreign undertakings, irrespective of the law governing the individual employment contracts with the workers posted therein. Such difficulties triggered the intervention of the EU legislator in the 90’s and lead to the adoption of Directive 96/71/EC, of the European Parliament and of the Council, of 16 December 1996, on the posting of workers in the framework of the provision of services (Directive 96/71) [2]. It is widely recognized that Directive 96/71 is not an instrument of substantive harmonization of labour law provisions of the MSs applicable to posted workers [3]. It is, instead, an instrument of private international law that determines the mandatory provisions of the MS of destination of the posted workers which shall be applicable, irrespective of the provisions of the MS of origin of such posted workers governing their individual employment contract according to the choice of law rules of article 8 of the Rome I Regulation [4]. The recognition of the existence of situations where [continua ..]

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2. The transposition, in Portugal, of the EU Directives on posted workers

Directive 96/71/EC was implemented in Portugal by Act no. 9/2000, of 15 June (Act 9/2000), and entered into force a month later [9], with a delay of half a year, since the transposition should have occurred until December 1999. This legal regime was then included in the Código do Trabalho approved by Act no. 99/2003, of 27 August – the Portuguese Labour Code (PLC of 2003) [10]. Currently, the provisions implementing Directive 96/71 are enshrined in the Portuguese Labour Code of 2009 [11], approved by Act no. 7/2009, of 12 February (PLC) particularly in articles 6, 7, and 8. Directive 2014/67 was implemented at national level by Act no. 29/2017, of 30 May, which entered into force on 31 May 2017 (Act 29/2017) [12]. More recently, Directive 2018/957, of 28 June, has been transposed to the national legislation by Decree-Law no. 101-E/2020, of 7 December (Decree-Law 101-E/2020) [13], which republished Act no. 29/2017, with some amendments aimed, precisely, at ensuring the transposition of Directive 2018/957 [14]. Prior to the implementation of Directive 2018/957, the provisions which, in Portugal, implemented Directive 96/71 were to be found exclusively in the PLC. However, the implementation of Directive 2018/957 left unchanged such provisions set forth in the PLC, which transposed Directive 96/71. In effect, the Portuguese legislator surprisingly opted to include the provisions transposing Directive 2018/957 not in the PLC but in the legal Act which contains the provisions transposing Directive 2014/67 – Act no. 29/2017. This means, in other words, that although Directive 96/71 was transposed into Portuguese Law through provisions of the PLC, the provisions operating the transposition of Directive 2018/957 are to be found not in the Code, but in a different legal act – Act 29/2017 – devoted to the transposition of a different Directive. This dubious option of the Portuguese legislator is likely to cause confusion and be a source of trouble and conflicts, since the provisions contained in the PLC that transposed Directive 96/71 remain in force, with no consideration for the amendments introduced by Directive 2018/957 to Directive 96/71.

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3. Scope of application of the Portuguese legal framework on posted workers implementing Directive 96/71

3.1. The notion of posted worker in the Portuguese Labour Code The PLC does not clearly define posted worker and nowhere in articles 6 or 7 is it stated that the regime contained therein applies only to posted workers conducting their activity in the context of a provision of services. This is quite surprising, since Directive 96/71 expressly makes reference to the provision of services, either in its title and when it defines its scope of application and the notion of post worker in article 1(3)(a). Be as it may, the Code attempts to provide a definition of posted worker in the context of article 6, that circumscribes the scope of application of the posted workers regime to workers posted in Portuguese territory. Article 6(1), while not focusing on the substantial characteristics of these workers, lists the three situations which “are considered to be subject to the posting regime” [15]. Such situations are the following three cases “in which the employee, hired by an employer established in another State, provides his activity in Portuguese territory: (a) in performance of a contract between the employer and the beneficiary who carries out the activity, provided that the employee remains under the authority and direction of the employer; (b) in the establishment of the same employer, or company of another employer with which there is a corporate relation of reciprocal, do-main or group participation; (c) at the service of a user, at the disposal of which he was placed by a temporary employment agency or another company. First type of posted worker – Article 6(1) considers the “posting regime” one “in which the employee, hired by an employer established in another State, provides his/her activity in Portuguese territory”. This can be, as referred already, a situation “in performance of a contract between the employer and the beneficiary who carries out the activity, provided that the employee remains under the authority and direction of the employer”. The reference to the requirement of existence of a contract between the employer and the beneficiary who carries out the activity opens the door to the inclusion, within the scope of application of the Portuguese regime on posted workers, of cases where the contract between the employer and the beneficiary is not aimed at the provision of services, or at least primarily at the provision of services. Another feature of article 6(1)(a), is [continua ..]

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3.2. The territorial scope of application of the posted workers Portuguese regime

The Portuguese legal regime on posted workers has the peculiar feature, according to article 8 of the PLC, of being expressly applicable to Portuguese undertakings posting workers abroad. While article 7(1) of the PLC, concerning employment conditions of workers posted in Portugal, provides that such posted workers have the right to the working conditions provided for by law and collective labour regulations of general efficacy [in Portugal], which respect to a set of subjects therein indicated, in line with Directive 96/71, article 8(1), specifically concerning the posting of workers by Portuguese undertakings to another State, sets-forth that “[a] worker hired by a company established in Portugal and working in the territory of another State in a situation referred to in article 6, is entitled to the working conditions provided for in the previous article [article 7]”. The provisions applicable to workers posted in Portugal by foreign undertakings are therefore applied equally to workers posted abroad by undertakings established in Portugal. The provisions are exactly the same as the set-forth in article 7(1) of the PLC [19]. Another peculiar feature of the Portuguese regime on posted workers is, as already alluded, that it is indistinctly applicable to workers posted in Portugal by undertakings established in an EU MS (or, as we have mentioned to workers posted in another MS by Portuguese undertakings), as well as to workers posted in Portugal by undertakings established in a non-EU State (third-country), or to workers posted in third-countries by Portuguese undertakings.

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4. Terms and conditions of employment applicable to posted workers

Article 7(1) of the PLC implements article 3(1) of Directive 96/71, keeping the wording previous to Directive 2018/957, as alluded above. This article provides that “notwithstanding a more favourable regime established by law or employment contract, the posted worker has the right [in Portugal] to the working conditions provided for by law and collective labour regulations of general efficacy, which respect: […] b) maximum duration of working time; c) minimum rest periods; d) holidays; e) minimum remuneration and payment of additional work; f) assignment of employees by temporary employment agency; g) occasional hiring of employees; h) work safety and health; i) protection in parenthood; j) protection of the minors’ work; l) equality of treatment and non-discrimination”. The reference, in Article 7(1) of the PLC, to the circumstance that the provisions of Portuguese labour law and collective labour regulations with general efficacy shall be applied to workers posted in Portugal, “notwithstanding a more favourable regime established by law or employment contract”, leaves no doubt that such national provisions shall be applied irrespective of the law governing the individual employment contract or the provisions of the contract themselves. This will be so, of course, unless the law governing the individual employment contract of the posted worker, or the contractual provions themselves, are more favourable to the posted workers than Portuguese Law provisions on the matters listed in article 7(1).

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4.1. Collective agreements with erga omnes effects in Portugal?

Even though article 7(1) of the PLC expressly refers “working conditions provided for by law and collective labour regulations of general efficacy” [20], we must point out that, in Portugal, collective agreements (and, of course, arbitration awards) do not, in themselves, have erga omnes effects in the sense of having general efficacy to all the workers in Portuguese territory in a certain sector of activity/industry, comparable to the efficacy of provisions set forth by the legislator [21]. Even if that provision must be interpreted as referring to collective agreements whose effects have been administratively extended to all undertakings in a particular sector, or sectors, of activity in Portugal, according to the recent case law of the Portuguese Supreme Court, not contradicted by the courts of appeal, such extension shall not include employees who are affiliated to trade unions other than those that entered into the extended collective agreement [22]. In this light, the possibility that workers in a particular sector in Portugal are not subjected to a collective agreement administratively extended to that sector through an Extension Ordinance may pose challenges to the application of the working conditions provided in such collective agreements to workers posted in Portugal. In effect, if collective agreements, even when administratively extended to a certain sector in Portugal, may not be applicable to all employees in that sector working in Portugal, imposing their contents to companies posting workers in Portugal may be regarded as deviating from the idea of ensuring posted workers the conditions of work provided by law, or by collective agreements universally applicable, on the basis of equal treatment between Portuguese employees working in Portugal and (foreign) workers posted in Portugal [23]. At a more general level, we would add that, in our view, the absence of a clear provision, in Directive 96/71, regarding the identification of the collective agreements that, in States deprived of a system for declaring collective agreements of universal application, might have to be respected by foreign undertakings posting workers in such States, is capable of giving rise to doubts and litigation. The amendment introduced by Directive 2018/957 to article 3(8), paragraph 2, of Directive 96/71 – which now reads “[i]n the absence of, or in addition to, a system for declaring collective agreements or [continua ..]

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4.2. Principle of application of the most favourable law

The principle of application of the most favourable law to the posted worker, established in article 3(7) of Directive 96/71, is implemented in Portugal through article 7(1) of the PLC, which determines that, notwithstanding a more favourable regime established by law or employment contract, a worker posted in Portugal has the right to the working conditions provided for by Portuguese law, which respect to the matters listed therein which we shall consider bellow [24]. In essence, a comparison has to be made, case by case, for each of the matters listed in article 7(1), between the provisions of the law governing the individual employment contract (according to article 8 of Rome I Regulation, or article 6 of the Rome Convention), the provisions set forth by the parties in the individual employment contract itself and the provisions of Portuguese Law with erga omnes effects, in Portugal. The provision granting the most favourable result to the posted worker in the case at hand shall be the provision applicable. The assessment, in each case, of what is the most favourable result for the posted worker may not be an easy task, especially since Portuguese Law does not grant to the posted worker the ability to decide which result is the most favourable to himself/herself.

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4.3. Terms and conditions of employment applicable to posted workers according to the PLC – the problem of “remuneration”

As alluded, article 7(1)(e) of the PLC sets forth that workers posted in Portugal have the right to benefit from the legal regime concerning “minimum remuneration and payment of additional work”. It is surprising that this provision, in particular, remained unchanged after the transposition, in Portugal, of Directive 2018/957, which does not refer anymore to “minimum rates of pay, including overtime rates”, as the original Directive 96/71 provided, but, instead, to “remuneration, including overtime rates”. It is in article 4(1)(i) and article 5(3)(e)(ii) of Act 29/2017 that we now find references to “remuneration”, instead of “minimum remuneration”. The first of these two provisions states that “[i]n order to verify the status of a worker temporarily posted in Portuguese territory, providing its activity in the conditions set forth in article 6(1) and (2) of the PLC, the competent authority [ACT] shall consider, namely, the following elements which characterize the situation of the employer: […] remuneration, the subsidies and benefits inherent to posting, assuming that these are paid as reimbursement of expenses for travel, food and lodging, when it is not possible to determine what are the elements paid as remuneration”. The second provision states that “access shall be provided, gratuitously, to detailed information concerning the working conditions applicable to workers posted in Portugal, namely in matters concerning: […] (ii) remuneration, including its constituent elements, according to the law or applicable collective labour regulation of general efficacy”. However, Article 4 concerns the ascertaining of a situation of posting by the ACT, while Article 5 relates to the duty to provide access to information on the working conditions applicable to posted workers in Portugal by the ACT. It is quite farfetched, therefore, to argue that article 5 of Act 29/2017 (on the Access to information), and, even less, article 4 (on the Assessment of a situation of posting), may constitute a legal basis for imposing an obligation, on service providers from other MS posting workers in Portugal, to respect all legal provisions and collective labour regulations of general efficacy, concerning remuneration, including its constituent elements, and not only “minimum remuneration” provisions. This, in our view, constitutes an incorrect transposition of Article [continua ..]

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4.4. The inclusion of provisions concerning “job security” among the terms and conditions applicable to posted workers – a Portuguese peculiarity

With respect to the working conditions mandatorily applicable to posted workers – either workers posted in Portugal by foreign undertakings or workers posted abroad by Portuguese undertakings – listed in Article 7(1) of the PLC, such list diverges from the list of Article 3(1) of the 96/71 Directive in one significant way, in addition to the already alluded divergence concerning “remuneration” matters. In effect, article 7(1)(a) includes “job security” among the conditions to which a worker posted in Portugal by a foreign undertaking, is entitled to benefit from the terms provided by Portuguese Law [27]. This inclusion results from the fact that the Portuguese Constitution, in article 53, provides that “workers shall be guaranteed job security, and dismissal without fair cause or for political or ideological reasons shall be prohibited”. Some Portuguese commentators argue that this provision is a mandatory overriding statute which shall be applied irrespective of the fact that the law applicable to the employment contract is a foreign law by application of the choice of law rules which grant competence, in principle, to the law of State where the worker’s activity habitually takes place. The immediate and autonomous application of Article 53 of the Portuguese Constitution shall occur, according to that literature, if the employee has been dismissed without a fair case, as understood by Portuguese law, as long as the employee is a Portuguese national or habitually resides in Portugal and the employer is Portuguese [28]. The Portuguese legislator considered that when a worker is posted in Portugal, even if the law governing his/her individual employment contract is a foreign one, such worker shall benefit, while posted in Portugal, from the protection granted to all Portuguese workers, in Portugal, and to Portuguese workers working abroad for a Portuguese undertaking, unless the law governing the contract or the provisions of the contract themselves are more favourable to the worker than Portuguese provisions on this matter.

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4.5. New terms and conditions mandatorily applicable to posted workers after Directive 2018/957

Article 3-A(1)(a) of Act 29/2017 was added by Decree-Law no. 101-E/2020. As alluded, it provides that posted workers in Portugal shall be entitled to the “conditions of workers’ accommodation, where provided by the employer”. Consequently, undertakings established in other Member-States posting workers to Portugal shall defray, as set forth by Article 194(4) of the PLC, “the expenses of the worker as a result of the increase of the costs […], in case of temporary transfer, of accommodation”. When accommodation is not provided by the employer, the posted worker, according to Portuguese law, shall be entitled – as it would happen in case of temporary transfer of the place of work of any employee, within the Portuguese territory – to receive an amount to cover the expenditures resulting from the additional costs related with accommodation as a consequence of his/her posting to Portugal. It must be noted, however, that the right to such amount “may be excluded by collective labour regulation instrument”, as provided by Article 194(5) of the PLC. The posted worker shall benefit, in any case, from the regime which is more favourable to him/her, in this matter, resulting either from the law governing the individual employment contract concluded between the worker and the undertaking posting him/her in Portugal, or from the provisions of such individual employment contract. The worker hired by an undertaking established in Portugal, performing his/her activity in the territory of another State, has the right to the conditions we just described too. Also article 3-A(1)(b) of Act 29/2017 was added, providing that workers posted in Portugal by undertakings of other MS shall be entitled to the “grants, allowances or reimbursements purporting to cover exclusively the expenditures with travel, board and lodging incurred by posted workers where they are required to travel to and from their regular place of work in the MS to whose territory they are posted, or where they are temporarily sent by their employer from that regular place of work to another place of work”. Again, the posted worker shall benefit from the regime which is more favourable to him/her. Similarly, and still with the exception that a more favourable regime is applicable, a worker hired by an undertaking established in Portugal and performing his/her activity in the territory of another State, also has the right to the [continua ..]

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5. Long duration posting – implementation of new article 3(1a) of Directive 96/71

The new Article 3-C(1) of Act 29/2017, as amended by Decree-Law 101-E/2020, transposes almost literally article 3(1a) of Directive 96/71, as amended by Directive 2018/957, which provides that “[w]here the effective duration of a posting exceeds 12 months, MS shall ensure, irrespective of which law applies to the employment relationship, that undertakings as referred to in article 1(1) guarantee, on the basis of equality of treatment, workers who are posted to their territory […] all the applicable terms and conditions of employment which are laid down in the MS where the work is carried out: – by law, regulation or administrative provision, and/or – by collective agreements or arbitration awards which have been declared universally applicable or otherwise apply in accordance with paragraph 8”. The Portuguese legislator made a copy-paste transposition of the subsequent section of article 3(1a) (2nd subparagraph) of Directive 96/71, which provides that such general application of all the terms and conditions of employment of the State of destination, after the 12-month period has passed, shall not apply, inter alia, to “procedures, formalities, and conditions of the conclusion and termination of the employment contract” [emphasis added]. The Portuguese legislator evidently forgot that, as we mentioned above, among the working conditions mandatorily applicable to workers posted in Portugal by foreign undertakings, listed in Article 7 of the PLC, we find “job security”. It must be stressed that the Portuguese legislator included job security as a mandatory condition applicable to workers posted in Portugal, under the public policy provisions, referred to by article 3(10) of Directive 96/71, although that matter is not included in the list of Article 3(1) of Directive 96/71. This oversight from the Portuguese legislator is rather unfortunate, since it excludes the application of national provisions concerning the conditions of termination of the employment contract, after the 12-month period elapsed, when such provisions, as expression of the principle of protection of job security, were already applicable to the contract before the termination of such period. Lastly, the new sections (3), (4) and (5) of article 3-C of Act 29/2017 adequately transpose the remaining paragraphs of Article 3(1a) of Directive 96/7. Section (3) determines that “where a motivated notification is submitted to the ACT, [continua ..]

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6. Temporary agency workers hired-out by temporary work agencies as provided by new article 3(1b) of Directive 96/71

Article 3-B(1) of Act 29/2017 provides that “[n]otwithstanding a more favourable regime established by law or employment contract, or what is provided in article 7 of the Labour Code [and the relevant provisions of Act 29/2017], the posted worker has the right to all the labour conditions applicable to temporary workers hired out by temporary employment agencies established in Portugal”. This provision implements, in Portugal, article 3(1)(b) paragraph 1 of Directive 96/71, with the wording given by the Amending Directive. It must be pointed out that article 3-B(1) of Act 29/2017 refers to cases of posting of workers in Portugal by temporary employment agencies of other MS. However, the Portuguese legislator, in consonance with what is provided by article 8 of the Labour Code, extends the application of the provisions applicable in Portugal, according to section 1 of article 3-B of Act 29/2017, to temporary employment agencies established in Portugal posting workers to other MS. The applicability of all those labour conditions to the temporary workers posted in Portugal cover, in essence, all the provisions of the PLC which set conditions or limit the use of temporary workers by user undertakings (articles 175 and 176), as well as all the other provisions which govern the contracts for the use of temporary work and which, in some way, constitute an expression, in Portugal, of the constitutional principle of job security (such as, for instance, articles 177 to 179). The applicability of all the labour conditions to the temporary workers posted in Portugal shall include, moreover, those provisions of the PLC (articles 185 to 192) which regulate the regime for the provision of temporary work. Article 3-B(2) adds that “the user undertaking shall inform the temporary employment undertakings of the labour conditions that it applies, including remuneration”. This provision implements, quite literally, in Portugal, article 3(1b)(2nd paragraph) of Directive 96/71. Similarly, to implement article 1(3)(c)(2nd paragraph) of Directive 96/71, with the wording given by the Amending Directive, a new provision was added to Act 29/2017 by Decree-Law 101-E/2020. We refer to paragraph 4 of the new article 3-B. This provision sets forth that when a worker, who has been hired out by a temporary employment undertaking to a user undertaking, is to carry out work in the framework of the transnational provision of services in the territory of a MS other [continua ..]

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7. The transposition of Directive 2014/67/EU (after Directive 2018/957)

As explained above, Directive 2014/67/EU was implemented at national level through Act 29/2017. As the transposition period ended on 18 June 2016, there was a delay of approximately one year. The transposition was correctly made. Indeed, in general terms, the diploma reflects the sequence of subject matters followed in the Directive. Despite the recent rulings of the CJEU in cases C-33/17, Čepelnik, and C-645/18, Bezirkshauptmannschaft Hartberg Fürstenfeld, we believe that they do not require any amendment to be introduced in Act 29/2017, since this act does not contain prescriptions similar to those under analysis on those rulings. Further, the national regime implementing Directive 2014/67 remained almost unchanged after Decree-Law 101-E/2020 that transposed Directive 2018/957. As already said, although this diploma republished Act 29/2017, the main amendments therein contained did not affect the rules of transposition of Directive 2014/67. In fact, if we analyse the Amending Directive, we conclude that it addresses the material regime of protection of posted workers, set forth, at European level, on Directive 96/71/EC and, at national level, originally on the PLC. However, some punctual and minor amendments have been introduced in the enforcement regime, which kept it in coherence with the material modifications brought by the Decree-Law. Besides, even not imposed by Directive 2018/957, those few changes are suggested in its Preamble and they result from the concerns therein expressed, such as the reinforcement of the tools to identify situations of posting, or the improvement of the information given to posted workers. The following paragraphs provide a brief overview of those amendments. Firstly, regarding administrative cooperation between MS, Act 29/2017 provides time limits within which information requested by other MS shall be provided: article 7(1) sets forth that the competent national authority shall provide the information requested by other MS or the European Commission, electronically, within the following deadlines: a) up to two working days from the date of reception of the request, in urgent cases, duly substantiated, which require consultation of records; b) up to 25 working days from the date of reception of the request, in relation to all other requests for information, except when a shorter period is mutually agreed. A new paragraph has been introduced on article 7, by Decree-Law no. 101-E/2020, that provides the [continua ..]

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8. Conclusion

Overall, the legal framework adopted in Portugal for the implementation of the Directive 2018/957 can be considered adequate, although the transposition of Directive 2018/957 in Portugal has been made, in general, in a literal way and, from a formal and systematic point of view, the model of transposition adopted is unfortunate. In fact, the transposition of Directive 96/71 was made through provisions of the PLC, whereas Act 29/2017 was the piece of legislation that implemented Directive 2014/67, which was not amended by Directive 2018/857. Still, the transposition of the provisions of Directive 2018/857 was made through the amendment of Act 29/2017, by Decree-law 101-E/2020. The provisions of the Portuguese Labour Code on posting of workers were surprisingly left unchanged with no consideration for the amendments introduced by the Amending Directive. This questionable option of the Portuguese legislator is likely to be a source of trouble and uncertainty, giving rise to contradictory interpretations of the legal provisions contained in the PLC and the, now, diverging legal provisions contained in the Act 29/2019, as amended by Decree-Law 101-E/2020, which implemented the Enforcement Directive and now also implements the Amending Directive. We identified, as described above, two instances of incorrect transposition of Directive 2018/957. They concern, namely, the transposition of Article 3(1b) of Directive 96/71, as amended, dealing with temporary employment undertakings in the context of chain posting, and the transposition of the Article 3(1)(c) of the 96/71 Directive, as amended, that now refers to “remuneration” and not, as in the original 96/71 Directive, to “the minimum rates of pay”. In particular, the absence of transposition, in Portugal, of Article 3(1)(c) of Directive 96/71, as amended by Directive 2018/957 must, in our view, be tackled by the Portuguese legislator as soon as possible, since it is capable of hindering the effective application, in Portugal, of the European legal framework on posted workers with respect to one central provision of that framework. We also identified the unfortunate transposition of new article 3(1a) of Directive 96/71, concerning the long duration posting of workers. Although not involving an infringement on Directive 2018/957, the transposition of that article 3(1a) does not contribute, either, to increase the effective application of the European legal framework on posted workers in [continua ..]

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NOTE

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