Most of the more than 150 amendments to the labor code, part of the decent work agenda, will take effect on May 1, Labor Day, after the diploma was published this Monday in Diário da República. Analyzing the new measures in the law, four labor law specialists, consulted by Dinheiro Vivo, believe that the presumption of an employment relationship between employees and digital platforms, such as Uber, Glovo and Bolt, threatens to be in the drawer. because it is too difficult to maintain and maintain.
The amendments to the Labor Code, approved by parliament in February, establish presumption of employment at the digital platform, initially if at least two of the six indicators are verified – such as the determination of the remuneration for the platform or when the equipment belongs to the multinational – to show that these employees, on green receipts, work dependently. However, this amendment does not exclude that the contract may alternatively be signed with small and medium-sized intermediaries operating in these sectors, for example when the platform disputes this presumption of works.
If proven, the presumption of employment gives the employee access to a series of rights laid down in employee contracts, such as holidays and the associated subsidy, weekly days off, as well as social protection, through the regularization of social contributions: 11% paid by the employee and 23.75% on behalf of the company.
Ângela Afonso, senior employee in the field of labor in Cuatrecasas, points out that “the law provides that, in cases where an employment contract is deemed to exist on the basis of this presumption, only labor standards that are compatible with the nature of their activity providers will apply”. “That is, not only is it difficult to prove the bases of the conjecture, but even if you manage to make the conjecture work, you can never achieve total equivalence of platform workers with the rest. It is reason to questions: what is the presumption anyway?!’, criticizes the lawyer.
In the same vein, Eduardo Castro Marques, of Dower Law Firm, believes that “the notion of compatibility remains open, which will raise doubts in the application of the regime”. The lawyer therefore concludes that “the presumption of employment on digital platforms is one of the regimes whose practical application will prove more difficult”. Still, the labor law expert praises the “regulation of this new form of work” in light of the “multiple risks associated with it, such as insecurity and inequality in access to social protection”.
Luís Almeida Carneiro, from the law firm Spain & Associados, also defends the regulation of this activity, but leaves a warning: “If the presumption of employment, which has been in force for several years in the Labor Code, causes problems in its practical application, what shall be said of this new assumption”. The lawyer goes even further and concludes that “entities that develop economic activities via digital platforms only monitor the conversion of current contracts with their providers into employment contracts if they decide to do so”. On the other hand, according to the lawyer’s analysis, the presumption of employment is “the most difficult measure to apply and control, both because of its novelty and because of its technical-legal complexity”.
CMS specialist in employment law, Tiago Magalhães, also recalls that “it is often the employees themselves who, wanting more flexibility and autonomy, intend not to have an employment contract”. According to him, “rather than revising the social protection regime for the self-employed and making it more robust and protecting service providers, the state is placing this obligation on companies”.
In Portugal, there are about 100,000 couriers and drivers on platforms such as Uber, Glovo and Bolt. Presumption of employment requires at least two of the six requirements.
The latest known data, relating to the end of last year, points to around 100,000 workers on digital platforms in Portugal. In 2020, the Institute of Mobility and Transport (IMT), which regulates the activity of drivers and operators of non-characterized passenger transport, the TVDE, accounted for about 40,000 drivers, but to this must be added the couriers who are in greater number.
Two changes in the Decent Work Agenda also deserve a negative note: the ban on outsourcing for one year after dismissal and the exclusion of the probationary period, currently 180 days or half a year, for professional trainees, young people looking for a first job and for the unemployed long-term, if the duration of the previous fixed-term employment contract concluded with another employer was equal to or longer than 90 days.
Tiago Magalhães, from CMS, expects that “the planned accounting changes for the experimental period could become an obstacle to hiring these employees, which proves to be detrimental as the rationale would be to protect them”. For Ângela Afonso “this solution is absurd because the trial period is for the parties to assess their adaptation to each other”. “It is not only punitive for the companies, but also for the employees themselves who are forced to stay in a company for at least 30 days” in which they do not want to stay, he insists, adding that “it will have the opposite because the Employers will most likely avoid indefinitely employing workers under these terms, which are not subject to probation”.
As for the ban on outsourcing, the same lawyer believes that this will have an adverse effect. The measure, “aimed at promoting employment and preventing redundancies, calls into question the improvement of employment and its quality, the main banner of the decent work agenda”. In the same vein, Eduardo Castro Marques classifies the measure as “unreasonable”. “It simply limits the freedom of economic initiative of companies without any criteria. Does it make sense to extend the ban for a year? And is it reasonable to apply such a period indiscriminately?” , to each company, regardless of the respective economic and financial situation and the socio-economic context in which the dismissal takes place?” asks the lawyer.
Salomé Pinto is a journalist for Dinheiro Vivo
Source: DN
