Studies on Labour Law (Labour Code),Volume I

Luís Gonçalves da Silva

Year: 2008

In this book, the Author brings together a set of studies on the Labour Code, in which he analyses the compatibility of the main matters of the Code with the Constitution, the changes introduced by the diploma and the theme of collective bargaining.

The Labour Code and the Constitution

A guided tour of the Labour Code: the first phase of Labour Reform

General Principles of Collective Bargaining in the Labour Code

The temporal scope of Collective Agreements

Notes on the collective effects of Company Transfer

Case Law of the Social Section of the Lisbon Court of Appeal, of 31 October 2001

Case Law of the Supreme Court of Justice, of 6 February 2002

Brief Reflections on the Collective Agreement Applicable to Retirement Pensions in the Banking Sector

Studies on Labour Law (Labour Code),Volume II

Luís Gonçalves da Silva

Year: 2020

Available in e-book

The Labour Code has been the subject of constant changes, noting that, since 2009, the labour regulations have undergone fifteen modifications, which has posed several interpretative challenges. Among the altered matters, the norms pertaining to labour sources of law are particularly relevant, in particular with regard to collective agreements.

After the success of volume I, in Volume II the Author brings together a set of texts published in several magazines and collective works, in Portugal and abroad, making it easier for the reader to access them. In these texts, bearing in mind the common thread of collective agreements, the Author analyses matters such as the impact of the economic crisis and the “Troika”, the powers of the labour administration, the personal sphere and the working time, the relevance of the place of work and, finally, the choice of the collective instrument by the worker.

Introductory Note

Studies’ Content

Economic Crisis and Collective Bargaining

The “Troika” and Collective Bargaining

Labour Administration and Collective Bargaining: a Few Questions

Application of Collective Agreements and Extension Ordinances. Working time

The Relevance of the place of work in the Application of Collective Agreements

The Worker’s Choice of the Applicable Collective Agreement

Notes on the Normative Effectiveness of Collective Conventions

N.º 1 of the Collection

Luís Gonçalves da Silva

Year: 2002

Following previous publications, the Labour Law Institute of the Faculty of Law of the University of Lisbon (IDT) is responsible for a new collection: Labour Law Volumes. In order to continue to contribute to the development and dissemination of the science of Labour Law, this collection is especially dedicated to specific studies.

This book, named Notes on the Normative Effectiveness of Collective Conventions, addresses, after a brief historical review, the normative effects of collective conventions, bearing in mind the spatial, personal and temporal effectiveness.

To the text, the Author adds a compilation of diplomas on collective agreements ranging from the moment of their first appearance to the present.

Assignment of Employees and Groups of Companies

N.º 2 of the Collection

João Zenha Martins

Year: 2002

The scientific project of the Labour Law Institute of the Faculty of Law of the University of Lisbon (IDT), in the path of the study and dissemination of Labour Law, now finds a new expression with the launch of the Labour Law Volumes.

This work, entitled Assignment of Employees and Groups of Companies, is an important step in providing a legal framework regarding workers’ mobility mechanisms that, for various reasons, have been experiencing a sharp increase.

In this context, all the figures that embody such phenomenon are studied, with particular emphasis on the figure of the occasional assignment of employees, whose regime is object of analysis in all its aspects and elements. Thus, in addition to analysing the immense universe that is Portuguese labour law, the regime applicable to company groups is also being studied. The regulatory paradigm of work in an individual company is today insufficient to understand the multiplicity of social demands and the reality of groups of companies, where the need for productivity and competitiveness is projected in an increased way, requires a broader spectrum analysis that also takes into account the provisions of the Commercial Companies Code.

The fundamental challenge in this whole field therefore involves the construction of a global framework that, recognizing the transformations that have taken place and the decisive role of negotiation, can contribute to the sustainability of a labour model in which the duty to adapt to new circumstances and the duty to protect workers are compatible.

Portuguese Labour Code – Código do Trabalho

N.º 3 of the Collection

Ano: 2005

In December 2003, the Labour Code entered info force, consequently reformulating Labour Law and making it important to inform lawmakers and recipients of the respective norms of the legislative solutions adopted. Knowing that Labour Law has become internationalized and that the rules contained in the Labour Code may have foreign recipients, who do not always master Portuguese well, the Labour Law Institute of the Faculty of Law of Lisbon (IDT), in collaboration with the law firm AM Pereira, Sáragga Leal, Oliveira Martins, Júdice, e Associados (PLMJ), has prepared a bilingual edition (Portuguese and English) of the Labour Code. The option for an English translation stems from it being more widely disseminated at the international level, therefore allowing for easier access to the labour regime set forth in the Labour Code, despite the greater difficulty regarding concept equivalence of legal terms.

Legal Regime for Employment Contracts in Public Functions

N.º 4 of the Collection

Maria do Rosário Palma Ramalho

Pedro Madeira de Brito

Year: 2009

The reform of the public employment legal regime has been carried out for some years and has just resulted in the approval of several structural legal instruments, which significantly change the regime applicable to workers holding a public service employment contract.

The present compendium of legislation compiles the fundamental legislation on this matter, currently in force, with emphasis, namely, on the new Legal Regime for Employment and Career of Workers who perform Public Functions, on the new Legal Regime for Employment Contract in Public Functions and on the new Disciplinary Regulation.

The New Labour Code versus Previous Legislation

N.º 5 of the Collection

Maria do Rosário Palma Ramalho

Joana Pinto Monteiro

Isabel Vieira Borges

Diogo Pereira Duarte

Year: 2009

The extent and complexity of the changes to labour regimes introduced by the 2009 Labour Code justify a comparative study of the labour regimes contained in the new Labour Code with the corresponding regimes in the 2003 Labour Code and the respective Regulations. Such is the purpose of this comparative work, which can thus be another useful tool to deal with the traditional volatility of labour regimes and its inherent problems, well known to all those who, at the most varied levels, are confronted with these matters.

Studies by the Labour Law Institute – Volume I

This is the first publication of the Labour Law Institute of the Faculty of Law of the University of Lisbon. Based on the texts that served as support for the lecturers’ presentations in the classes of the first post-graduate course in Labour Law, this work proves to be of undeniable quality, given that it gathers analyses by several renowned Portuguese jurists, such as Jorge Miranda, Bernardo Lobo Xavier, Saldanha Sanches and Pedro Romano Martinez, just to name a few. An excellent tool for students and human resource managers. Edited by Almedina.”

in Expresso, 10 of March of 2001

Module I – Labour Law: general questions

The Labour or Employment Constitution – Jorge Miranda

Private autonomy and equality in the formation and execution of individual employment contracts – Guilherme Dray

Module II – Present and future of Labour Law

The participation rights of workers’ representatives regarding the drafting of labour legislation – Jorge Bacelar Gouveia

European Community Labour Law – Maria Luísa Duarte

Economic analysis of the employment contract – Fernando Araújo

Module III – Individual employment contract

Subordinated work and autonomous work – Pedro Romano Martinez

Functional flexibility – Luís Miguel Monteiro

Module IV – Organization of working time, place of work and remuneration

Working time organization models – Alberto de Sá e Mello

Place of work – Pedro Madeira de Brito

Old and new remuneration in kind: its fiscal treatment – Saldanha Sanches

Module V – Termination of employment contract

Disciplinary authority and disciplinary procedure for dismissal – Rosário Palma Ramalho

The collective redundancy regime and the modifications introduced by Law 32/99, of 18.5 – Bernardo Lobo Xavier

Repercussions of bankruptcy on termination of employment – Luís Carvalho Fernandes

Module VI – Special regime employment contracts

Temporary work: notes on the reform of its legal regime – Maria Regina Redinha

Sports Employment Contract – João Leal Amado

Module VII – Employment contracts in groups of companies

The recent case law of the European Court of Justice on the transfer of a undertaking, business or part of an business – inflection or continuity? – Júlio Vieira Gomes

Assignment of employees. European works councils: a new collective interlocutor – Helena Tapp Barroso

Module VIII – Law on working conditions

The repair of damages resulting from accidents at work – Luís Menezes Leitão

Legal regime for the prevention of accidents at work – Ribeiro Lopes

Administrative offenses in labour law – Teresa Serra

Module IX – Collective relations and work process

The normative effects of collective agreements – Luís Gonçalves da Silva

Prerequisites, requirements and effects of extension ordinances – Luís Gonçalves da Silva

Studies by the Labour Law Institute / Studies by the Labour Law Institute – Volume II

Coordination: Pedro Romano Martinez

Year: 2001

Fair causes for dismissal – António Menezes Cordeiro

The concept of fair cause for dismissal. Legislative developments and current situation – Joana Vasconcelos

Fair cause for dismissal and the private sphere – Mestre Guilherme Machado Dray

Breach of contract and fair cause for dismissal – Pedro Romano Martinez

Fair cause for dismissal based on violation of the duties of attendance, zeal and diligence – Pedro Madeira de Brito

Legal typification of fair cause. The “injury to the company’s serious patrimonial interests” and the “intentional practice, within the company, of damaging acts of the national economy” – José Andrade Mesquita

The fair cause for dismissal for injury to the company’s serious equity interests and for the practice of damaging acts of the national economy – Sofia Leite Borges

Fair cause for dismissal for violation of the duty of attendance; unjustified absences from work and false declarations relating to justification of absences – an approach to the case of false declarations for justification of absences in particular – Helena Tapp Barroso

The fair cause for dismissal in the context of groups of companies- Mestre Abel Sequeira Ferreira

The termination of the employment contract with fair cause in Brazilian Labour Law – José Lúcio Munhoz and Dr. Tareio Vidotti

Studies by the Labour Law Institute – Volume III

Coordination: Pedro Romano Martinez

Year: 2002

After the I Volume, in which some of the interventions in the I Postgraduate Course in Labour Law were gathered, and the II Volume, which includes several articles on fair cause for dismissal, the Labour Law Institute publishes the III Volume of Studies. This III Volume contains the texts corresponding to some of the lectures presented in the II Postgraduate Course in Labour Law, whose program is included at the beginning of the book. Differently from the I Volume, it was decided to only publish complete texts and not also the summaries of the interventions, as these do not always satisfy the reader’s expectations; on the other hand, it was understood that it would be useful to publish some works by graduate students, which is done under a specific section included at the end of the Studies.

It remains to be noted that, in the year 2001, the Labour Law Institute of the Faculty of Law of Lisbon, in addition to promoting the publication of the two volumes of Studies mentioned and having completed the teaching of the II Post-Graduate Course Graduation in Labour Law, has also initiated the III Postgraduate Course, in which, once again, the candidates exceeded the established numerus clausus, organized a Postgraduate Course in Labour Law in the Autonomous Region of Madeira, a colloquium on the Specificities of Labour Law in the Banking Sector, on the 25th and 26th of October, and a debate session on the proposal for a new drafting of the General Labour Law (individual relations), prepared by the Labour Legislation Analysis and Systematization Commission, on the 15th of November.

Presentation

II Postgraduate Program in Labour Law Program

Lecturers’ essays

Some Principles of Private International Law and Public International Labour Law – António Marques dos Santos

Functional flexibility in collective labour regulation [1996 to 2000] – Luís Miguel Monteiro

The Right to Paid Annual Leave – José Andrade Mesquita

Fixed-Term Employment Contracts – José João Abrantes

Termination of the Employment Contract: General Aspects – Pedro Romano Martinez

Clarification the Concept of Fair Cause – Joana Vasconcelos

The Collective Redundancy Regime and Amendments introduced by Law nº 32/ 9 – Bernardo Lobo Xavier

Telework, Information Society and Law – Guilherme Machado Dray

The Subjects in Collective Labour Regulation- Luis Gonçalves da Silva

General Principles of the Labour Process – Isabel Alexandre

Proceedings of the Common Declarative Process in the Labour Procedure Code – Pedro Madeira de Brito

Students’ Essays

The Repercussion of Time in the Disciplinary Procedure. Prescription, Expiration, Instruction Duration and Failure to Observe the Decision Deadline – Inês Albuquerque e Castro

Studies by the Labour Law Institute – Volume IV

Coordination: Pedro Romano Martinez

Year: 2003

In a particularly troubled year, in which the public discussion of the Labour Code led to an intense debate around multiple labour issues, the Labour Law Institute of the Faculty of Law of Lisbon, through its Postgraduate Course and other initiatives, namely colloquia, contributed to the analysis of various aspects of labour legislation. This contribution includes the studies of some of the professors of the Postgraduate Course, which are now published.

After the I Volume, where some of the interventions in the I Postgraduate Course in Labour Law were compiled, the II Volume, which includes several articles on fair cause, and the III Volume of Studies, with several articles by lecturers of the II Course Graduate Program in Labour Law, the Labour Law Institute publishes the IV Volume of Studies, which contains the texts corresponding to some of the lectures presented in the III and in the IV Graduate Course in Labour Law, whose program is included at the beginning of the book.

In 2002, the Labour Law Institute of the Faculty of Law of Lisbon, in addition to promoting the publication of the aforementioned volume of Studies (III) and having completed the teaching of the III Postgraduate Course in Labour Law, has also initiated a IV Postgraduate Course, now on Labour and Social Security Law, in which, once again, the candidates exceeded the established numerus clausus, organized a conference on the Preliminary Project of the Labour Code, on the 25th of July, and a colloquium, on the 11th of December, on the draft law for the reformation of the Labour Code.

Presentation

Program of the IV Postgraduate Course in Labour Law and Social Security

Private International Law in the Labour Code – Dário Moura Vicente

Fixed-Term Contract or Penelope Tapestry? – Júlio Vieira Gomes

Temporary Work – Guilherme Machado Dray

Notes on Temporary Work – Célia Afonso Reis

Football, Sports Employment and Joint Arbitration Commission: Historical Case Law on «Termination Clauses» – João Leal Amado

Part-time Employment Contract – Paula Ponces Camanho

Taxation of Dependent Work Income in the IRS – Luís Menezes Leitão

Arbitration of Collective Labour Disputes – Dário Moura Vicente

Studies by the Labour Law Institute – Volume V – Seminars on Procedural Labour Law

Coordinator: Pedro Romano Martinez

Year: 2007

Program

Procedural Requirements in labour procedure: analysis and discussion of practical aspects – Domingos José de Morais

The Public Ministry and the legal representation of workers in the declarative labour process – João Monteiro

Labour precautionary measures – Maria Adelaide Domingos

The conciliatory phase of the special process emerging from 16.03.2006 fac. Law univ. Lisbon – Vítor Melo

The common process for declaring the dismissal unlawful – Fausto Leite

Collective Redundancies Process – Luís Miguel Monteiro

Litigation Process of Social Security Institutions, Family Allowances and Trade Unions – José Eusébio Almeida

Judicial Appeals in Labour Procedure – Maria José Costa Pinto

Studies by the Labour Law Institute – Volume VI

Coordination: Pedro Romano Martinez

Year: 2012

Program

The new Labour Procedure Code. A Necessary Reform – Pedro Romano Martinez

Labour Procedure: autonomy or specialty in relation to civil procedure – Maria do Rosário Palma Ramalho

Arbitration of individual labour disputes – Dário Moura Vicente

The status of the Public Ministry in the labour jurisdiction. Rationale and justification of an originality of the Portuguese legal system – Vítor Melo

Precautionary procedure for suspension of dismissal- Maria Isabel Fernandes Tapadinhas

Common precautionary procedure in labour jurisdiction and precautionary measures provided for in the code of civil procedure applicable to labour proceedings – Cláudia Madaleno

Judge’s powers in determining the facts in labour proceedings – Maria Adelaide Domingos

Relevance and procedural framework for judicially challenging the regularity and lawfulness of the dismissal – Manuela Bento Fialho

The special process for challenging collective redundancies – Bernardo da Gama Lobo Xavier

Litigation processes of social security institutions, family allowances, trade unions, employers’ associations and workers’ commissions – Fausto Leite

Extra vel ultra petitum sentences – an outdated mechanism? – Joana Vasconcelos

Judicial Appeals in Labour Procedure – António Santos Abrantes Geraldes

The role of case law in applying indeterminate labour concepts: in dubio pro operario? – João Leal Amado

The labour judge as a judge of European Union law. In particular, preliminary ruling in the labour jurisdiction – Sónia Kietzmann Lopes

Studies of the Labour Law Institute – Volume VII

Coordination: Rosário Palma Ramalho

Year: 2015

This volume of Studies of the Labour Law Institute compiles works of students from Scientific Master’s and Doctorate courses in the areas of Legal-Labour and Legal-Business Sciences of the Faculty of Law of Lisbon, which were presented as final reports in the disciplines of Labour Law I and II, of which I am Professor.

With this further publication, the Labour Law Institute fulfils its mission of making known to the community of legal experts and all those interested in labour matters, the serious scientific research that is being carried out in this area, namely in the Faculty of Law of Lisbon.

The studies gathered in this work, under our coordination, were prepared within the general theme of the Labour Law Seminars of the academic years to which they refer – the theme of Collective Labour Situations and the theme of the Reform of the Labour Code of 2009. Although they deal with very different labour issues, they are all concerned with reflecting the most recent legislative changes in the respective topic and their consequences.

The first study, authored by Ana Margarida Henriques, is dedicated to the legal regime of paid annual leave and reflects, in particular, the changes introduced in the Labour Code by L. nº 23/2012, of 25 June regarding this matter. The second study, prepared by André Sousa Marques, revisits the unavoidable but always current theme of disciplinary proceedings for fair cause dismissal, in the light of the most recent legislative changes. The third study, by José João Valadas Henriques, addresses the difficult issue of the temporal scope of collective labour agreements and the their applicability after termination, discussing the successive changes in this matter over the past few years. And the fourth and fifth studies, by Pedro Barrambana Santos and Guilherme Gaspar, respectively, address the theme of the legal nature of collective labour agreements, a classic issue that today, more than ever, is in need of rethinking in the perspective of the relationship between labour sources of law and the principle of collective autonomy.

All studies have been updated by the authors for the purposes of this publication.

Lisbon, July 31, 2014

Maria do Rosário Palma Ramalho

Studies by the Labour Law Institute / Studies by the Labour Law Institute – Volume VIII

Coordination: Pedro Romano Martinez / Luís Gonçalves da Silva

Year: 2020

The Labour Law Institute, within the scope of its purposes, namely, the promotion and development of scientific research, the study and dissemination of Labour Law, with emphasis on the organization of courses and conferences, intends to publish this new volume, the VIII. This Volume is comprised of texts elaborated in the scope of the Post-Graduation Course in Labour Law and Social Security, which for 22 years, uninterruptedly, contributes to education in this area.

Fundamental rights as limits to companies powers – José João Abrantes

Brief notes on the labour legal status of people with a disability or chronic illness in the Labour Code – Joana Nunes Vicente

Formation of the employment contract and the trial period revised – Diogo Pereira Duarte

Limits on working hours – Luís Miguel Monteiro

Flexible working hours for workers with family responsibilities – Sara Leitão

Part-time work, intermittent work, shift work and night work – Vitor Palmela Fidalgo

Tax Aspects of Remuneration – Paula Rosado Pereira

Termination by mutual agreement of the employment contract – form, content and effects – Joana Vasconcelos

The relevance of the loss of trust in the assessment of Fair Cause – Sara Leitão

Dismissal due to fact attributable to the worker – Carmo Sousa Machado

Insolvency and collective subjects – Luís Gonçalves da Silva

Strike – Vitor Palmela Fidalgo

Employment and Support Policies for Companies and Workers – Jorge Gaspar

Social Security Guarantees and Litigation – Apelles da Conceição

Criminal and administrative labour offenses – João Soares Ribeiro

Precautionary Procedures – Sónia Kietzmann Lopes

Judicial Appeals in Labour Procedure – Armindo Ribeiro Mendes