COMMUNICATION
The Portuguese regulation on transfer of undertakings,
inserted in the Labour Code (“TUPE Regulation”), was amended by Law n. 18/2021
of 8 April.
The amendments are in line with some previous
decisions of Portuguese and EU case law, which ruled that TUPE Regulation shall
apply in the context of a services agreement, contracts awarded by public
tender or any other type of contract.
Under amended Portuguese TUPE Regulation, the
respective provisions shall apply, amongst others, to service agreements
entered into in the extent of private security, catering, cleaning and
transport services.
In those cases, the transfer of business is deemed to
the occur at the time when the services are hired or awarded.
The amended TUPE Regulation applies immediately to
public tenders or other tender procedures pending or in progress during 2021,
including those where the awarding of the contract has been completed.
The transferred employees have the right to oppose to
the transfer of the employment agreement, under the same terms as any other
employee affected by transfer of undertakings.
Although it was commonly accepted under the general
rules, it is now expressly provided that the collective bargaining agreement
applicable to the transferor shall continue to apply to the transferee until
the end of the respective term or, at least, in the 12 subsequent months to the
transfer, save if, in the meantime, another CBA becomes applicable to the
transferee.
Finally, the amended TUPE Regulation establishes that,
in case either party requests the participation of the Labour Authorities
in the information and negotiation stage
prior to the transfer, the request must include the information provided to the
affected employees (or to their representatives), notably date and grounds of
the transfer, the legal, economic and social consequences to the affected
employees, the measures envisaged in relation to the latter and also the
contents of the transfer agreement.
Law n. 18/2021, of 8 April, enters into force on 9 April 2021 and the original
Portuguese version is available here.
By default, this site uses cookies to improve your experience. See our Cookies Policy for more information.
ACCEPT