The Portuguese President has declared today a state of emergency due to public disaster, following countries such as Spain, France, Italy and the United States, that adopted the same measure to fight the current Covid-19 pandemic.
This exceptional measure may imply strong restrictions to some constitutional rights, reason why it is limited to the indispensable in harmony with the principle of proportionality.
The most severe restrictions may occur to the freedom of movement and settlement in any part of the national territory. With the expected exceptions of certain professional activities such as health care or food supply, the Portuguese Government will specify in which terms citizens will no longer be allowed to use their right to free movement according to the evolution of the Covid-19 pandemic.
Compulsive confinement at home or in a health establishment can be imposed, as well as the setting of sanitary fences (which is already taking place in the municipality of Ovar).
International movement is limited, border controls (including sanitary ones) on people and goods can be imposed, and compulsory confinement also applies. Travelling ban from and to Italy and Spain is already in place.
Property rights and private initiative may also suspended or otherwise limited, as well as the provision of any services. The use of any health care units, commercial and industrial establishments may be demanded.
Employees may be required to perform functions under different working conditions, particularly in the health, civil protection, security and defense, distribution and supply of basic goods and services and critical infrastructure sectors.
According to today’s presidential decree, which may be read here, under no circumstances will the rights to life, integrity and personal identity, civil capacity and citizenship, as well as freedom of expression and information be compromised, well as the principles of criminal law.
The state of emergency shall remain in force until April the second and may be renewed if normality has not yet been restored.
The Covid-19 pandemic will affect drastically the solar promoters in Portugal as it will make harder for them to comply with their permitting obligations in due time. These are some examples of how Portuguese promoters are subject to a tight schedule:
- promoters with production license obtained prior to the approval of the Decree-law 76/2019 have two years after its issuing to obtain the operation license (extendable to 3 years);
- promoters awarded on the first Portuguese solar actions in June 2019, have 6 months to obtain the land rights required for the plant construction; and, depending if the project requires environmental impact assessment or not, 12 or 18 months to obtain the production license, 18 or 24 months to obtain the construction license and 30 or 36 months to obtain the operation license;
- promoters seeking an agreement with the Grid Operator to increase the grid capacity have 20 business days, counting from 11 March 2020, to provide documental support in order to be attended before other promoters, which have 120 business days to gather such documents;
The Covid-19 pandemic driven emergency measures contained in Decree law 10-A/2010, enacted on 13 March by the Portuguese Government, do not contemplate yet cases such as these. It suspends all tacit approval deadlines but the above deadlines do not benefit of tacit approval, and therefore are not suspended. Suspension will only occur in case the competent authorities close due to the Covid-19 pandemic, but this did not happen so far with DGEG (the Portuguese energy authority), with APA (the Portuguese environmental authority) or with the Municipalities, which are expected to continue working online. Arguably, a general force majeure principle may apply if, for instance, an operation license’s requirements are delayed because a construction permit issuance is delayed due to a Municipality’s service restrictions imposed during the Covid-19 pandemic.
Needless is to say that If promoters fail to comply with their licensing schedules, financial penalties, including performance bonds, may be enforced and, in some cases, licenses could be terminated. So, these are times to stay at home, yes, but working harder than ever. That’s the only way everyone’s projects can reach COD successfully.
Recently published, the new collective bargaining agreement signed between the Portuguese Association of Facility Services, and the Portuguese Union of Concierge Workers, Surveillance, Cleaning, Housekeeping and Various Activities ("STAD") and the Federation of Trade Unions of Industry and Services ("FETESE"), establishes new rules for the employment relationships between employers engaged in hygiene and cleaning activities in buildings, industrial equipment, pest control and hygiene, disinfection, and employees at their service, represented by the signatory associations.
On March 16, an Extension Order for the said collective agreement was also published, widening the scope of the collective agreement to all companies dedicated to the provision of facility services, even if subsidiary or complementary to their main activity and to the workers at their service.
Among the new rights foreseen in the collective agreement we highlight the following:
- Allocation of a minimum wage of €638.00 for early-career employees with the category of cleaning worker and of €1,100 for employees at the top of the supervisor-general career;
- Increase in meal allowance from €1.85 to €3.00 in 2020 and to €3.50 in 2021;
- Payment of a 100% increase for the work performed on public holidays;
- Possibility of an increase in the employee’s vacation days, between 1 and 3 days, according to the absences in the related year;
- Provision for an arbitration mechanism for situations in which the parties, in future negotiations, do not reach an agreement.
The new instrument further establishes that in cases of loss of a workplace, the new entity has to ensure the activity of the employer and it is responsible for the maintenance of the employment contracts. The employees will maintain all their rights, privileges and seniority, transmitting the obligations arising from the employment agreement to the new company.
The new rules that are now coming into force have not been revised as a whole since 2004.
The Government has approved a set of extraordinary measures to face the COVID-19 virus pandemic, which include Law Decree No. 10-A/2020 and the Council of Ministers Resolution No. 10-A/2020.
The following rules apply to employees:
- The disease situation is equivalent to prophylactic isolation for 14 days, both for subordinate workers and self-employed ones, provided that it is motivated by situations of serious risk to the public health and decreed by the entities recognized as health authorities. Recognition of sickness benefits is not subject to guarantee terms or waiting periods;
- The situation resulting from the assistance of a child or other dependent on the employee's responsibility in prophylactic isolation for 14 days is considered justified;
- With the exception of periods of school interruptions (e.g. Easter holidays), absences are considered justified, only with loss of rights in relation to retribution, any absences from work motivated by unavoidable assistance to a child or other dependent under 12 years of age, or, with disability or chronic illness, of any age, resulting from suspension of school and extracurricular activities in a school or social support equipment.
Absence must be determined by a health authority, and the worker must report the absence to the employer under article 253 of the Portuguese Labor Code, otherwise the absence is considered unjustified.
- A guarantee of social protection for trainers and trainees is established in the course of training, as well as beneficiaries employed in active employment policies who are prevented from attending training.
Thefollowing rules apply to companies:
- Deferral of tax obligations (e.g. delivery of periodic revenue income statement for the 2019 tax period until July 31, 2020, without any surcharges or penalties);
- Flexibility of VAT payment by companies and self-employed individuals, in a fractional manner and up to six installments;
- Flexibilization of social security contributions, and reduction to 1/3 of the contribution in March, April and May. The remaining amount for the months of April, May and June is settled as of the third quarter of 2020.
- Payment of incentives related to the Portugal 2020 Programme, within 30 days;
- Eligibility of expenses incurred with cancelled international events;
- Promoting an extraordinary financial incentive to ensure the standardisation phase of activity and aimed at supporting businesses in order to prevent the risk of unemployment;
- Creation of a set of credit lines totaling € 3 billion for the most affected sectors (e.g. restaurants, tourism, textile industry, clothing, footwear).
Under the Council of Ministers Resolution 10-A/2020 of 13 March, four extraordinary measures for immediate support for workers and businesses are established.
For that matter, Ordinance No. 71-A/2020 of March 15 was published, which defines and regulates the terms and conditions for the allocation of immediate support of an extraordinary temporary and transitional nature, aimed at employees and employers, in order to maintain jobs and mitigate situations of business crisis. The Ordinance was amended by Ordinance No. 71-A/2020 of March 18.
The measures are as follows:
- Promotion of an exceptional and temporary regime for exemption from the payment of social security contributions;
- Extraordinary support for the maintenance of employment contracts in a situation of business crisis with or without training, with the State paying 70% of 2/3 of the remuneration, up to a limit of 3 RMMG;
- Extraordinary training plan; and
- Creation of an extraordinary financial incentive to ensure the normalization phase of the activity (up to one minimum wage per worker).
These measures apply to private sector employers, including employers in the social sector, and employees at their service, who are in a situation of business crisis.
All the measures mentioned are in force and can be taken advantage of by workers and companies.
The Portuguese Council of Ministers approved a set of extraordinary measures in response to the COVID-19 pandemic, with a view to maintaining jobs.
The extraordinary support measures are:
(i) Extraordinary support for the maintenance of employment contracts in a business crisis situation, with or without training ("Simplified Lay Off");
(ii) The Extraordinary Training Plan;
(iii) Extraordinary financial incentive to support the normalization of the company's activity;
(iv) The temporary exemption form the Employer of the Social Security payroll.
It is considered a situation of corporate crisis:
(i) The total stoppage of the company's or establishment's activity that results from the intermittence or interruption of global supply chains; or
(ii) The abrupt and sharp drop of at least 40% in invoicing, with reference to the same period of 3 months, or, for those who started the activity less than 12 months ago, the average for that period.
The Simplified Lay-off follows the following rules:
(i) The State supports the payment of wages;
(ii) The support translates into the payment of 2/3 of the employee's illiquid remuneration, 70% of which is ensured by Social Security and 30% by the employer.
(iii) The support corresponds to an amount equal to 2/3 of the employee's illiquid remuneration, up to a maximum of three guaranteed minimum monthly salaries;
(iv) The financial support is granted for a period of one month, extendable monthly, up to a maximum limit of six months, only when the company's employees have taken the maximum limit of annual vacation and when the employer has adopted the mechanisms of flexibility of working hours established by law;
(v) the employer benefiting from this measure may entrust the worker with the temporary performance of duties not included in the employment contract, provided that this does not entail a substantial change in the worker's position, and that they are geared to the viability of the undertaking; and
(vi) In order to have access to these measures, the employer must be proven to have the social security and tax situations regularized before the Tax and Customs Authority.
The new measure requires the obligation to inform, in writing, the employees concerned and the foreseeable duration of the interruption of the activity.
The employer also has the duty to hear the union delegates and workers' commissions when they exist, by immediately sending an application to the Social Security Institute, accompanied by the list with the names of the covered workers and their Social Security identification number.
The circumstances are attested by a declaration of the employer together with a certificate from the company's certified accountant, and are then confirmed by the competent State bodies.
The new mechanism can also be complemented with the vocational training component, by adding a training grant of 30% of the Social Support Index (IAS). Half of the value is attributed to the employee and half to the employer, with the costs being borne by the Institute for Employment and Professional Training (IEFP, I.P.)
The diploma was published today in Diário da República and comes into force on March 16.
Following the guidelines of the health authorities and the Portuguese Government regarding the Covid-19 outbreak, Macedo Vitorino will start working remotely from March 16, while maintaining a smaller physical presence in its offices.
The remote desktop systems that we have been using for some time, will allow us to ensure that our work will continue to be done with the quality, effectiveness and proximity that clients expect from us. Our teams will continue working together through remote communication systems.
We will remain in touch with our clients and suppliers through the usual contact emails. We have suspended physical meetings and will be available to meet using remote applications, such as videoconferencing.
We will publish regular newsletters regarding the legal developments resulting from the Covid-19 outbreak and how they will impact on businesses and private individuals and will continue to inform you of other legal developments that may be of interest to your day-to-day basis business.
We will make a status assessment with our lawyers and employees every week to determine the best date of return to our offices.
Together we will be able to contain the spreading of this pandemic.
The Portuguese Government has issued two orders, Order no. 2836-A/2020 and Order no. 2875-A/2020,with guidelines on how employers and employees should act as we face the Covid-19 outbreak.
To private sector employees the following rules apply:
- In case of quarantine by decision of the Portuguese health authorities, due to the danger of contamination, the employee is guaranteed payment at 100% of the salary, from the first day, for 14 days.
- After this period, if the employee remains unfit for work for health reasons, in particular because they have been tested positive for the virus, the rules of sick leave apply: 55% of the reference salary for leave up to 30 days, 60% for leave between 31 and 90 days, 70% for leave between 91 and 365 days and 75% of the reference salary for any leave the lasts more than one year. The sickness benefit is paid from the first day of leave since it is a hospital stay.
- The provisions of the preceding paragraph do not apply to employees for whom it is possible to ensure the use of alternative work arrangements, in particular teleworking, where they will continue to receive their regular salary.
- In the event of a situation in which employees have to leave to provide assistance to children, grandchildren or other household members in prophylactic isolation, the scheme laid down by Portuguese law for these purposes applies.
To civil servants the following rules apply:
- In the event of isolation, which must necessarily be determined by a Portuguese health authority, the civil servant’s absence is considered justified without loss of pay.
- When alternative performance methods and work mechanisms (e.g. telework) are possible, the worker retains his rights as if they were working normally.
- In the event of a situation in which civil servants have to leave to provide assistance to children, grandchildren or other household members in prophylactic isolation, the scheme laid down by Portuguese law for these purposes applies.
There are other differences to note between the two orders: the order regarding the public sector is the most extensive and warns civil servants that they have five working days, from the date of publication, to prepare contingency plans based on the guidelines of the Portuguese General Directorate for Health, in particular with alternative procedures that allow ensuring the normal functioning of each service or establishment. Public services should also consider other measures, such as: (i) reduction or suspension of the public opening hours, (ii) suspension of public events or initiatives, carried out either indoors or in places open to the public and (iii) suspension of face-to-face training activities, giving preference to distance training.
The regime of leave due to prophylactic isolation entered into force, for Portuguese state services and establishments, on March 2 and in the private sector on March 3.
The Government approved at the Council of Ministers the amount of the wage increases for the public administration to be applied in 2020.
Under the Law Decree approved yesterday, civil servants will have a wage increase of 0.3% in 2020.
Workers with salaries up to €683.13 will have a salary increase of €10.
The new increases also apply to workers working in public sector companies, as long as they’re not covered by existing collective labor regulatory instruments.
The new updates are retroactive to 1 January 2020.
Yesterday two new collective agreements were signed for CP employees, one for train drivers and the other for general professional categories, about two decades after the first publication of the previous agreement.
The new agreements were concluded by CP and the trade unions representing all the professional categories - SMAQ, SFRCI, FECTRANS/SNTSF, ASSIFECO, SNAQ, ASCEF, SINFB, SINFA, SINAFE, SINDEFER, and SNEET.
The agreements include, among other benefits, increases of the base salaries, meal allowance, seniority benefits, failure allowance, shift allowance, prevention allowance and driving bonus.
Allowances were also created for certain professional categories, namely for railway workers and train employees.
With regard to the organization of working time, the parties have reached agreement on a number of important issues for improving the balance of workers' private and professional lives, in particular:
- Definition of a minimum rest time at headquarters between services of 14 hours for mobile employees;
- The posting of a map of stopovers and shifts 15 days in advance;
- Duty to inform employees of any changes to schedule and shift maps at least three days in advance, except in unforeseen situations; and
- Prohibition of the imposition of holidays by the company outside the period between May 15 and October 15.
The new collective agreement also establishes the right of employees to health insurance and pre-school allowance.
The signing of the new collective agreements is part of the principle of collective autonomy and the right to collective bargaining, enshrined among the rights, freedoms and guarantees of workers, specifically in no. 3 of article 56 of the Portuguese Constitution.
New entrants will have access to a bidding phase on their own in the upcoming 5G auction scheduled for April this year. New entrants are reserved one lot in the 900MHz band and three lots in the 1800MHz band, along with national roaming provisions and limitations on the acquisition of certain lots, they are also granted a 25% discount on the final price of that purchased band spectrum. Lastly, in order to smoothen the financial burden that may arise of the auction, bidders for the 700MHz, 900MHz and 3.6GHz bands, are required to pay only 2/3 of the purchased spectrum and defer the remainder over a five-year period.
As Portugal is among the European countries with the lowest number of MNO’s, thus the allocation of rights of use of 5G frequencies by auction, that will take place in April, it is estimated competition will improve, with new business models and market offerings emerging.
The total reservation price for the spectrum auction is of 237,9 million euros.
Restrictions are set to 700MHz and 3,6GHz frequency spectrum acquisition, which guarantees each undertaking is able to acquire the amount of spectrum it needs for the business they intend to develop, stimulating and ensuring the efficient use of spectrum.
For the relevant 5G frequency bands (700MHz and 3,6GHz), the reservation prices were set in line with the average reservation prices from the auctions already held in Europe: to the 700MHz band, 19,20 million euros per lot, in a total of 115,20 million euros; to the 3,6GHz band, which is divided in 40 lots and amounts to a total of 45,7 million euros, with the exception of the restricted use of some lots.
For the remaining bands: 900MHz, 1800MHz, 2,1GHz and 2,6GHz, the values are the same as for the multi-band auction that took place between 2011 and 2012, in which these bands had already been made available.
By the end of 2020 Portugal will have fulfilled the European Commission’s ambition to have at least one city with 5G and, by the end of 2025, the full coverage of 5G communication networks.
According to ANACOM schedule, the consultation on the auction draft regulation shall be concluded within 30 working days, as of 12 February, and the final allocation of the 5G frequency usage rights is expected to occur in August 2020.