The government of António Costa will abandon the famous churn rate it has proposed to penalize companies that abuse fixed-term or fixed-term contracts, which was approved in 2019 by the Assembly of the Republic. This additional contribution of up to 2% is constantly delayed on wages for precarious workers never seen the light of day due to lack of regulation. Because it is complex and difficult to apply, the executive is now preparing an alternative mechanism that, as Dinheiro Vivo knows, must be presented to the social partners in the second half of this year, the contours of the new instrument are as yet unknown.
The major difficulty in putting the rate into practice lies in the formula for calculating excess sales. According to article 55.º A, approved in 2019, of the Code of Contributory Regimes of the Social Security System, companies “presenting in the same calendar year an annual weight of fixed-term contracts higher than the respective sectoral indicator in force , it is an additional fee applied for excess turnover”. This ceiling for forward contracts per sector must be set by regulation, which has never been done, because the government has determined that it was impracticable to apply the average of the forward contracts of a sector to all companies of the same activity group, taking into account the different needs of employers, depending on size and scale.
On the other hand, the rate to be charged to companies between 0% and 2% on the salaries of precarious employees identified by the Social Security is determined “based on the difference between the annual weight of fixed-term contracts and the industry average, (.. .) with the progression scale laid down in a regulatory decree”, which also never existed. That is, the idea is that the greater the resort to uncertainty, above that average, the higher the rate will be, up to a limit of 2%.
Thus “the implementation of this turnover rate depends on the publication of two diplomas: a regulatory decree defining the concepts and procedures necessary for its implementation and implementation, namely with regard to the degree of progression of the contribution itself; and a sectoral indicator ” on the average of precarious contracts applied by area of work that must not be exceeded, explains Dinheiro Vivo, the specialist in labor law, Madalena Caldeira, of Abreu Advogados. The latter regulation must be published in the first quarter of the calendar year to which the rate relates in order to be applied in the following year. “That is, in the case of the fee charged in 2024, the diploma should be published by the end of March 2023,” the lawyer clarifies. “Based on this indicator, Social Security would officially determine next year which employers should or should not pay the new additional contribution within 30 days. It means that “in 2023 there will be no payment, because in 2022 there was no sectoral indicator and it will therefore not be possible in 2023 to determine the employers” subject to the new rate, emphasizes Madalena Caldeira.
Fixed-term contracts replacing an employee who is on parental leave or an employee who is temporarily incapacitated for work due to illness for a period equal to or longer than 30 days are excluded by law from the calculation of the surplus of turnover; very short-term employment contracts; and contracts that are mandatory with a resolutive condition due to legal obligations or due to limitations inherent in the type of work or the employee’s situation.
The extra top-up turnover contribution that would be charged to companies was intended to help pay unemployment insurance costs.
Still under the same law, but which will be replaced by a different mechanism, the revenue the state would collect from this additional contribution would help pay unemployment benefits.
But this was not the first failed attempt to introduce an uncertainty tax. The second government of José Sócrates introduced in 2011, when the Code of Contributory Regimes came into being, a rule that already provided for a similar penalty in Article 55 of the same law with the designation “Adequacy of the contribution rate for the type of work contract”. This instrument stipulated that “the part of the contribution percentage borne by the employer for fixed-term employment contracts is increased by three percentage points”. However, it never came into force, again due to lack of regulation. In 2019, the first government of António Costa finally retracted the article of the previous socialist executive, to later create another mechanism, admittedly more punishable, but which will fall in the same way without even leaving the newspaper.
The fight against precarious contracts, which accounted for 17.2% of all contracts registered at the end of last year, is one of the flagships of the current government of António Costa, backed by an absolute socialist majority in parliament.
In this sense, various amendments to labor law were approved in the context of the Decent Work Agenda, such as the ban on outsourcing for one year after dismissal, the presumption of employment between employees and digital platforms, the limitation of temporary contracts to four extensions instead of six, the reduction or even termination of the probationary period, currently of 180 days, in cases where the previous permanent – forward contracts (entered into with another employer) with terms equal to or greater than 90 days, or the inability for employees to waive wage credits once the contracts expire. But to ensure compliance with the new rules, so contested by employers, the role of the Occupational Health and Safety Authority will be decisive, which will now have access to data that companies report to social security about contracts and wages.
Source: DN
