The posting of workers to Portugal is ruled by the Decree-Law n.º 101-E/2020, which transposes EU Directive 2018/957, and amended the Law 29/2017. Current legislation aims at ensuring that posted workers are covered by certain minimum protective provisions when posted to Portugal.
Preconditions of posting of workers to Portugal
Article 6 and 7 of the Portuguese Labour Code rule the posting of workers to Portugal. Accordingly, posting presupposes that the worker, who is hired by an employer established in another State, is sent to Portugal on a short-term assignment to provide activities:
- As part of a service agreement with a portuguese company, or
- To work for a company of the same corporate group, or
- In a regime of Temporary work.
By definition, a posted workers in Portugal is a subordinate worker who performs an activity under the authority and direction of the foreign employer, in the context of a service provided temporarily by that company to another company and whose place of work is based in Portuguese territory.
However, the foreign undertaking can only post workers for a limited time. In any case, there must be a working relationship between the company that posts and the posted worker.
Prior obligations when sending employees to Portugal
Prior to commencement of the provision of services in Portugal, the foreign employer must report the posting of his workers to ACT (Autoridade para as Condições do Trabalho). The notification must be sent through the form made available online on the ACT portal.
The Posting Declaration sent to ACT shall provide the following information:
- Identity of the service provider (The ‘Posting Company’);
- Number and identification of the posted workers;
- Identification of person liaising with the ACT;
- Estimated duration of the posting;
- Address of the place/places of work;
Any subsequent changes do not have to be reported to ACT.
Furthermore, in accordance with Article 9 of the Law n. 29/2017, the posting company shall appoint a contact person to act as an intermediary with the Authorities. This contact person shall be available on the Portuguese territory.
Posting of workers to Portugal by Temporary work agencies
Workers posted in Portugal by temporary employment agencies established in other States have the right to all the employment terms and conditions applicable to temporary workers hired out to user undertakings in Portugal by temporary employment agencies established in Portugal.
Hence, a temporary employment agency shall ensure that posted temporary workers are subject to at least the basic employment conditions which would apply to such workers if they were recruited by the user undertaking, including all the collective agreements applicable on the company level.
A1 Certificate application for Portugal
Pursuant to Regulation 883/2004, the workers posted to Portugal or to another EU Member State shall continue to be covered by the social security system of the country of their permanent employment.
The foreign employer who posts an employee for work in another state must request an A1 Certificate, which is issued by the social security authority of the country where the employees have their permanent employment.
Certificate A1 confirms that posted employees have been registered in the social security system of the employer‘s country and that they do not have to pay any contributions in the host country.
The above condition applies only if the period of posting does not exceed 24 months and provided that the employee has not been posted to that State in order to replace another employee.
Obligation to keep available information on workers posted to Portugal
The posting employer must have available for immediate use a vast array of documents, aimed at certifying the genuinity of the posting. Therefore, during the entire period of the posting, and for one year after the end of the posting, the sending company must keep hard or soft copies of:
- Employment contract;
- Payslips and proof of payment;
- Records of working time.
These documents must be in Portuguese or accompanied by a certified translation into Portuguese. Within one year of the end of the posting, the employer must submit the above documents promptly and without delay, upon request by the ACT.
Posted workers’ rights
Article 7 of the Labour Code stipulates that posted workers have the right to a significant number of minimum conditions provided by law or collective bargaining. The posted worker shall be entitled to the same working conditions as Portuguese workers if they are more favorable, in particular as regards:
- Job security;
- Working time;
- Minimum wage etc.
The minimum wage includes the subsidies or allowances granted to the worker in the frame of the posting that do not constitute reimbursement of expenses incurred, namely travel, accommodation and meals.
The idea is to ensure the identical minimum conditions for workers posted in Portugal as all the other workers. Additionally, companies operating within the same sector can compete fairly and avoid ‘social dumping’.
Posting of third-country nationals to Portugal
Third-country nationals with residence in a Member State of the European Union and regularly employed in a company established in a EU Member State, by keeping the employment status, do not need a residence permit or a temporary stay permit for being posted to Portugal for providing services.