The labor reform in Portugal changes the rights of foreigners

Being aware of employment opportunities and laws in Portugal is essential for anyone wishing to relocate to the country. This is because, in May of this year, the Portuguese labor reform came into force with more than 70 legislative changes.

With the implementation of the Decent Work Agenda 2023 (ATD 2023), through the Law nº 13/2013, of April 3, 2023, the new legislation modified the provisions of the Portuguese general labor law, procedural legislation, social security (which, in Brazil, corresponds to social security), among other devices.

But the legislative changes don’t stop there. However, the initial text of the labor reform was subject to (i) correction (Declaration of rectification n. 13/2023, of May 29) and (ii) regulation of social protection (Decree Law n. 53/2023, of July 5th). And soon other legislative innovations should appear in relation to the Portuguese “ATD in Public Administration”.

It is worth mentioning that ATD 2023 brought innovations in various aspects, such as: (i) new measures or techniques to combat precariousness, (ii) work on digital platforms, (iii) innovations in terms of licenses, (iv) the creation of an “informal caregiver” working status, (v) new regime of fixed-term and temporary work contracts, (vi) equality and non-discrimination, (vii) innovative rules in terms of collective bargaining, (viii) strengthening of inspection activity, among others.

In the context of the ATD 2023 regulation, in relation to the level of foreign work and in the light of the (latest) Law on Foreigners, for this purpose, some novelties have emerged. However, it is worth mentioning that the changes could have gone further, that is, advanced further.

For example, the issue of international recruitment, foreigners’ rights and teleworking in Portugal stands out. With the introduction of the so-called “digital nomad visa” (article 61, B of Law 23, Law 23/2007, of July 4), the demand for this type of work has increased and has undergone the changes introduced by Law n.º 18 /2022, of 25 August.

Therefore, to request this type of work visa it is sufficient that the foreign citizen is in possession of (i) a contract for the provision of services or (ii) an employment contract, proving the relationship, regardless of its nature.

The law reads as follows:

It is granted to subordinate workers and freelancers residency permit for the exercise of a professional activity provided, remotely, to natural or legal persons with domicile or registered office outside the national territory, and the employment relationship or the provision of services, as the case may be, must be demonstrated.

This visa was created for telework situations, “home office“, remote work or remote work. In these terms, it should be remembered that a nomad (at least for work or “work” purposes) is someone who carries out his professional activity without a fixed location.

According to information published by the Portuguese press, this tool has been positively requested by citizens of Brazilian nationality, involved in this way of working (or even living).

However, it is necessary to point out some doubts. Portuguese law has excluded, at least ostensibly, regimes on promises of work (which are common negotiating tools, to date, in obtaining other visas). It also overlooked the opportunity to better link the teleworking regime, provided for by the Portuguese Labor Code, which proved to be inflexible, with the regime for foreign workers, which was progressively made more flexible and simpler.

In relation to the modification of the Code of Contributory Schemes (art. 33.º-A), in the context of the ATD 2023, the new law establishes that:

“Whenever there is communication from the employer of the admission foreign worker or stateless person outside the cases provided for by paragraph 6 of article 5 of the Labor Code, or by art. cessation of the relative contract, the inspection services of the Authority for working conditions are informed”.

Portuguese law obeys its own criteria regarding (i) the modality of drawing up employment contracts with foreigners (outside the European Union) and (ii) the exposition of information obligations.

Therefore, starting from the “old law”, these types of contracts are always subject to the written form, compulsorily, and respect the specific specification of the documents that authorize the foreign worker to (i) reside or (ii) work in Portugal (for example , residence permit or certificate of foreign student authorized to carry out a professional activity in Portugal).

The strengthening of the control power of the Labor Administration has acquired new contours in the face of international recruitment, in particular against the hiring of workers who are illegally located in Portugal.

This objective is clear in the light of the new law, which imposes mandatory notification of the security services in the event of admission (conclusion of the employment contract), as well as termination of the employment relationship, regardless of the reason or cause.

In a general note, the ATD 2023 intended to “aggravate” the administrative offense regime (punitive administrative regime) in the event of non-compliance with labor and social security regulations.

Therefore, the admission of foreign workers increasingly obliges employer-enterprises to strengthen their guardianship and protection due diligence (“DD”) before the new law.

Under the ATD2023 regulation, in terms of social protection, the position of the foreign worker has been clarified and strengthened.

The latest legislative change – which came to regulate the social protection of workers in the context of the ATD 2023 (article 28.º, n. 2 of the decree law n. 53/2023, of 5 July) – now provides for the use or failure to use (accumulation or accounting/non-accumulation or incompatibility) of social benefits granted by foreign social security systems (for example, the social security system in Brazil).

Note that, in exercising parental leave and for the purpose of granting the relative subsidy, it must be considered by the foreign citizen. The law reserves the norms of international treaties that may be in force with the Portuguese state. This is what happens in the case of Brazil, with the Social Security Agreement between Portugal and Brazil.

Furthermore, the law now expressly states (Article 8 of the same law) that:

“For the purpose of complying with the guarantee period, provided they do not overlap, the periods of registration of wages or a legally equivalent situation, in any national or foreign compulsory social protection schemewhich ensure pecuniary benefits of protection in the event of maternity, paternity and adoption”.

The granting of social support in Portugal depends on an important requirement known as the ‘guarantee period’, i.e. a period for registering wages and paying social contributions to social security services or, for example, the Social Security.

The new law allows you to account for it as a warranty period. Foreign citizens can benefit from this Portuguese social protection scheme taking into account the fulfillment of a guarantee period (considered) in a foreign social protection scheme, even with the requirements identified above.

It is worth mentioning that, according to the Portuguese government, the legalized population of Brazilian citizens in Portugal increased to over 300,000 in the first half of this year. In December 2022 there were 233.1 thousand.

On a final note, we recall that these aspects affect not only the professional life of workers, but also their personal situation (individual or family), as (foreign) citizens in Portugal.

Furthermore, with the use of new technologies and new ways of providing services, it is to be expected that further changes in the world of work are yet to occur.

*David Carvalho Martins is a Portuguese lawyer, partner of Chiode Minicucci | Littler, Master at the Faculty of Law of the University of Lisbon and PhD candidate at the Faculty of Law of the University of Lisbon and at the Facultad de Derecho of the Universidad de Murcia (Spain)

Source: Terra

Rose

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